Failure-to-Hire Discrimination Claims: What California Employers Face

An applicant who never worked a day for a California company can still sue it for discrimination. Government Code section 12940(a) makes it unlawful “to refuse to hire or employ the person” because of a protected characteristic. These claims are harder for plaintiffs to prove than termination cases, since an applicant rarely knows who else applied or why someone else was chosen. The employer’s defense is a hiring record showing the same criteria applied to every candidate.

What does an applicant have to prove?

That the employer knew the applicant wanted the job, and that a protected characteristic motivated the decision not to hire.

The usual starting point is the burden-shifting approach California courts borrow from federal law. In Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, the Court of Appeal explained that “In most cases alleging a failure to hire for discriminatory reasons, the prima facie case includes as an element a showing that the plaintiff applied for the job.” The application matters “because it establishes that the employer knew the plaintiff was actually seeking a job.”

If the applicant makes that initial showing, the employer has to state a legitimate, nondiscriminatory reason for its choice, such as better qualifications, earlier availability, or a hiring freeze. The applicant then has to show the reason is false or that discrimination was the real motive. Most failure-to-hire cases are won or lost at that last step.

Can someone who never applied bring a claim?

Yes, in some cases. Abed is the leading California example.

The plaintiff in Abed was a dental assistant extern with strong evaluations. According to the evidence on summary judgment, a floor supervisor saw prenatal vitamins in the extern’s purse, and the extern testified to overhearing the supervisor say, “[W]ell, if she’s pregnant, I don’t want to hire her.” The extern was then told there were no open dental assistant positions in the office, even though one was posted on the company’s website, and another extern was hired shortly afterward. The extern never applied.

The trial court granted summary adjudication because there was no application. The Court of Appeal reversed. It held that the plaintiff “was not required to show that she submitted an application to prevail because she raised triable issues as to whether Western Dental intentionally discriminated against her because she was pregnant by falsely telling her no position was available and thereby causing her not to apply for one.” The court also cautioned that the elements of a prima facie case “can vary depending on the plaintiff’s allegations.”

The lesson for employers is practical. A defense that rests only on “the plaintiff never applied” is weak if someone at the company discouraged the application. What a manager tells a candidate about whether a job exists is evidence, and it should be accurate.

Which hiring practices create the most risk?

Questions, screening tools, and informal comments that touch protected characteristics.

The Civil Rights Council’s pre-employment regulation, 2 CCR section 11016, sets the baseline. It says an employer “may make any pre-employment inquiries that do not discriminate on a basis enumerated in the Act,” but inquiries “that directly or indirectly identify an individual on a basis enumerated in the Act are unlawful unless made pursuant to a permissible defense.” It adds that “Photographs shall not be required as part of an application unless pursuant to a permissible defense.”

Scheduling questions are a common trap. The same regulation requires availability questions to make clear that applicants don’t need to disclose restrictions based on protected grounds, and it offers model language: “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?” An application that asks “Can you work Saturdays?” with no qualifier invites a religious creed or disability claim from anyone screened out by the answer.

Medical questions have their own rule. Section 12940(e) generally bars medical or psychological inquiries of an applicant before an offer. After an offer, an employer may require an examination or inquiry if it is “job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.” Criminal history has separate timing limits under the Fair Chance Act, which the firm covered in its post on the Fair Chance Act.

How do employers defend a hiring decision?

With a record created during the hiring process, not after the claim.

The strongest defense is a written comparison of candidates against criteria set before the search began. If the job required a license, a certain level of experience, or a schedule, the file should show who met each requirement and who was selected. An applicant who can’t show the chosen candidate was less qualified, or that the criteria shifted after the applicant’s protected characteristic became known, usually can’t prove pretext.

Comments matter in hiring cases the same way they do in termination cases. In Abed, the floor supervisor who allegedly made the comment didn’t have hiring authority, but the same supervisor delivered the message that no position was available. When a hiring manager relies on input from others, the employer should know what that input was and whether it was based on legitimate criteria.

Statistical claims are a separate theory. When an applicant challenges a test, a credential, or a screening tool that falls harder on a protected group, the case is a disparate impact claim, covered in the firm’s post on disparate impact defense. An individual failure-to-hire claim is about intent and the specific decision.

Steps to take when a rejected applicant files a claim

1. Preserve the job posting, every application received, interview notes, scoring sheets, screening tool outputs, emails and messages about the candidates, and the offer to the selected candidate, under a litigation hold once a claim arrives.
2. Calendar the response date on the CRD complaint, EEOC charge, or summons, and check for an EPLI policy with notice requirements and any arbitration agreement the applicant signed.
3. Identify everyone who screened, interviewed, or commented on the applicant, and avoid any action toward the applicant that could look like retaliation, such as blocking future applications.
4. Pull the documents the defense depends on: the hiring criteria as set before the search, how each finalist measured against them, and what the applicant was told about the position.
5. Talk to a lawyer before responding, contacting the applicant or their lawyer, or offering anything to settle.

Hiring claims are often decided on a thin paper record, and California employment litigation defense starts with gathering it before memories fade.

FAQ

Do employers have to keep applications from people they didn’t hire?

Yes. Government Code section 12946 requires employers to keep applications and personnel records “for a minimum period of four years after the records and files are initially created or received,” and longer once a verified complaint is filed. Even apart from the retention rule, an employer that discards the candidate pool loses its best evidence. The applications of the people who were hired, and of those who weren’t, are what show the criteria were applied evenly.

Can a rejected applicant sue if the company hired someone in the same protected group?

Yes, though that evidence helps the employer. Hiring someone who shares the applicant’s protected characteristic makes discrimination harder to infer, but it doesn’t end the case. Courts look at all the evidence, and a combination of protected traits can also be at issue. The selection record and a legitimate reason for the choice usually carry more weight than the identity of the person hired.

Is it lawful to ask applicants about their availability?

Yes, if the question is framed correctly. California’s regulation requires availability questions to make clear that applicants don’t need to disclose scheduling restrictions related to religion, disability, or a medical condition. Using the model language from the regulation lowers the risk. An online system that automatically screens out applicants based on schedule answers also needs a way for applicants to request accommodation.

Does a manager’s offhand comment about an applicant create liability?

It can become key evidence. In Abed, a comment from a supervisor without hiring authority, combined with a false statement that no job was available and the hiring of another candidate, was enough to defeat summary adjudication. Training managers to keep comments about protected characteristics out of hiring conversations is one of the least expensive protections available.

If a rejected applicant has filed a claim

If your company has received a CRD complaint, EEOC charge, or lawsuit from an applicant who says a protected characteristic cost them the job, the hiring file and what the applicant was told usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including refusal-to-hire discrimination claims by applicants. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

Government Code section 12940; California Code of Regulations, title 2, section 11016; Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.