Ninth Circuit Allows Age Discrimination Claims After Employer Fails to Post Position

The US Court of Appeals for the Ninth Circuit recently reversed a federal summary judgment, allowing age discrimination claims to proceed where an employer failed to post a job opening as required. 

According to the Constangy firm’s employment and labor blog, three long-serving managers in their 50s claimed they were denied a promotion to regional director because of their age after the employer instead offered the position to a younger colleague (Brian Caldrone, Joseph Celusta, Kathleen Staats v. Circle K Stores, Inc. and Cross America Partners LP).

The decision demonstrates the legal risks employers face when they bypass internal posting practices, even absent a legal requirement to post vacancies.

The dispute arose within a convenience store chain whose internal policy generally encouraged posting vacancies to allow employees to bid. When a regional director position became available, the employer did not post it. Instead, it moved a mid-40s regional director laterally into the role.

The three older managers, each with exemplary records and one level below the director position, did not apply because they were unaware of the vacancy. They sued, alleging age-based discrimination under federal employment law.

At the trial court level, summary judgment favored the employer on the basis that the plaintiffs had not applied and thus could not show qualification for the role.

On appeal, the Ninth Circuit panel stated the obvious: The plaintiffs’ failure to apply could not bar their claims because the employer’s decision not to post the vacancy prevented them from applying.

Evidence also included statements by a superior that allegedly disparaged older employees and encouraged them to retire, as well as suggestions that the selected candidate lacked the necessary qualifications for the position. The appellate court concluded that these facts were sufficient to allow a jury to determine whether age discrimination occurred and overturned the lower court.

The ruling illustrates the fact that even lawful managerial decisions regarding promotions can create exposure under age discrimination statutes if internal communication practices prevent eligible employees from applying.

Legal teams should advise maintaining transparent posting procedures to mitigate litigation risks. Along with ensuring equitable opportunities and creating clear documentation to support promotion decisions, this will serve as ammunition to justify outside hires.