USLAW Magazine - Summer 2021

Page 14

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www.uslaw.org U S L A W

WHATTHEYDON’TKNOW MAYHURTTHEM

Statute of Limitations Concerns in Discriminatory Failure to Hire Cases Michael A. Secret

As of January 2021, there were an estimated 6.9 million job openings in America, with 5.3 million employees hired for the previous calendar year.1 As many employers will tell you, hiring and firing is a fulltime job. This daunting process can be a breeding ground for employment suits, as discriminatory “failure to hire” actions can arise when a qualified candidate is not hired for discriminatory or otherwise illegal reasons. The question then presents itself: how long does a potential employee have to bring such a suit against his would-be employer? After all, there are no laws that require an employer to hire prospective

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employees that belong to a protected class. Invariably, an employer will choose to hire applicants who fall outside of a recognized protected class, and that is not, on its face, unlawful. No employer can tell how a potential employee will construe the reason for his or her termination. This is especially true in the COVID-19 era, as fewer job interviews are taking place in-person, leaving both the employer and the applicant unable to gauge the motives of each other fully. So how is a potential employer to know when it has inadvertently exposed itself to liability potentially decades after the statute of limitations has run?

DOES THE DISCOVERY RULE APPLY TO THE STATUTE OF LIMITATIONS? In the instance of “failure to hire” cases, it has been consistently held that the date on which the employer’s hiring decision is made known is the reference point from which the limitations period is calculated. However, the vast majority of states apply some form of the “discovery rule” to the statute of limitations for certain actions. In general, the discovery rule tolls the statute of limitations until the plaintiff discovers or reasonably should discover his or her injury. The quintessential example of the discovery rule is a doctor leaving a


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