SJC Rules Non-Applicant Is Non-Victim Of Discrimination

In Nguyen v. William Joiner Center For The Study Of War And Social Consequences, SJC-09848 (December 21, 2007) [http://socialaw.org/slip.htm?cid=17718&sid=120], the Massachusetts Supreme Judicial Court dismissed a claim that the University of Massachusetts illegally refused to appoint a person to a fellowship because the plaintiff never actually applied for the fellowship. ?
In this case, the plaintiff, who claimed to be of South Vietnamese origin, claimed that the University’s hiring practices were motivated by discrimination. The plaintiff did not, however, ever apply for the positions during a three-year period. He justified his inaction by pointing to the University’s alleged failure to advertise widely for the positions and by pointing to the futility of applying for the fellowships once he filed a claim of discrimination with the Massachusetts Commission Against Discrimination.

The SJC found that the positions were adequately advertised and, moreover, insufficient advertising does not necessarily mean that the employer’s hiring was motivated by discriminatory beliefs. In addressing the significance of the plaintiff’s failure to apply for the positions, the SJC refused to rule that non-applicants are barred from asserting claims of discrimination. It wrote, “In the context of proving a discrimination claim under G. L. c. 151B, a per se prohibition of relief to a non-applicant on the basis of futility would contravene the remedial purpose of the statute.”

The SJC then elaborated on this concept of “futility,” which is how a discrimination claim by a non-applicant is analyzed. This concept is similar to “constructive discharge,” which permits persons who “voluntarily” quit a job to claim that they were effectively forced out of their position. While normally a person denied a position cannot file a claim of discrimination if they did not apply for said position, the SJC recognized that such an omission is excusable when the employer has a notorious discriminatory hiring practice or policy. However, the plaintiff here failed to provide any evidence that the University would have refused to hire him subsequent to his filing of an MCAD claim. “The plaintiff’s subjective belief that, in light of the backdrop of legal proceedings, he would have been rejected had he applied for a fellowship cannot excuse his failure to apply, because the fact that he filed a charge with the commission alleging discrimination does not by itself establish that discrimination existed.”