Takeaway: While employers are not required to advertise positions, failure to do so could create an inference of discrimination.
Employers that fail to advertise positions might face legal challenges when employees are passed over for promotion, as demonstrated by a 9th U.S. Circuit Court of Appeals ruling allowing an age discrimination case against Circle K Stores to proceed to trial.
Before 2020, the plaintiffs were employed as dealer business managers (DBMs) at Circle K Stores, a chain of convenience stores and fuel stations with nearly 10,000 North American locations. Among other responsibilities, DBMs assist fuel station operators by providing advice on pricing, customer service, and station appearance. DBMs report to regional directors who oversee particular geographic areas.
The plaintiffs were, by all accounts, exemplary DBMs. They received strong performance reviews and earned company awards for their work. Their performance put them in line for promotion to the regional director level, an opportunity in which they all expressed interest. At the time, the plaintiffs were 54, nearly 56, and about 57 years old, respectively.
Around January 2020, the position of West Coast regional director became available. Despite their impressive track records and indications of interest in promotion, the plaintiffs were not given a chance to apply for the position. Instead, without soliciting applications, Circle K chose a younger individual for the role. The selectee was 45...
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