October 28, 2025
In a recent unpublished case (Caldrone v. Circle K), the Ninth Circuit Court of Appeals held that if an employer does not solicit applications for an open position, and does not announce that a position is available, then employees who were not hired for the position are not required to show that they applied for the position in order to demonstrate a prima facie case of age discrimination.
The facts in Caldrone
In this case, three managers over the age of 50 argued that Circle K declined to accept their applications for a Regional Director position, and failed to promote them, because the employer wanted to handpick a younger candidate. Each of the managers had previously expressed interest in the position, and alleged they were not given an opportunity to apply. Instead, another employee (still over 40, interestingly), who was a Regional Director in another region, was selected for the position.
In response, Circle K asserted that it decided there was no need to open the position for applications, internally or externally, because the lateral move of another Regional Director to fill the open position was a decision that made business sense for them.
Notwithstanding what look like pretty good facts for the employer, the Ninth Circuit remanded the case to the District Court, holding that the allegations were enough to on their face to demonstrate a prima facie case of discrimination. Now a jury will determine whether the Company’s facially legitimate reason was pretextual.
What to do in response?
This recent decision has not been published, so we don’t know the outcome. But the ruling at this stage suggests that employers may want to err on the side of caution in making hiring decisions.
- In an abundance of caution, post open positions both internally and externally, to allow a full range of applicants to apply.
- In making employment decisions, use objective and well-documented criteria. By well-documented, we mean have objective criteria for the decision, and consider memorializing them in writing, including the objective criteria that led to the ultimate decision.
- This is another reminder to have regular conversations with employees about what is going well, where there is room for improvement, and to mentor employees toward growth opportunities. Again, with good documentation.
Having a consistent, non-discriminatory and well-documented process for making employment decisions is a great way to protect your company from litigation. Let us know how we can help!
