Unposted Job Openings Create Age Discrimination Risk, Court Rules

Most HR leaders know that rejecting a promotion candidate solely because of age is unlawful age discrimination. But a new federal court ruling warns that even choosing a younger candidate without posting the job can raise the same legal risks. The decision reinforces that informal promotion practices can carry hidden bias risks for employers.

The court’s message is clear: Posting job openings for all to see is the safest path for HR, even when a strong internal candidate is already in mind. And under the logic of this ruling, an older worker may have a valid age discrimination claim even if they never applied – because you can’t apply for a job you never knew existed.

3 Older Managers Felt Ready for Promotion

The plaintiffs were three dealer business managers for the convenience store and gas station chain Circle K. In that role, they supported fuel station operators with pricing, customer service, and station appearance, reporting to regional directors who managed larger territories. All three were strong performers who earned excellent reviews – and had expressed interest in moving up to a regional director role.

When a regional director position opened in January 2020, Circle K didn’t solicit applications. Instead, it gave the job to 45-year-old Miko Angeles, who was already serving as a regional director in another area. At the time, the three dealer business managers were between 54 and 56 years old.

The dealer business managers sued, alleging illegal age discrimination. They said they were illegally denied the opportunity to apply for the job.

Lower Court Rejects Age Discrimination Claims

A lower court ruled in Circle K’s favor, reasoning that the plaintiffs couldn’t win because they didn’t apply for the promotion. The plaintiffs argued that Circle K deviated from its usual policy of soliciting applications internally. But the lower court said that even if it did, the deviation from the usual procedure didn’t prove age discrimination.

The court also rejected evidence indicating that the executive who hired Angeles disparaged older employees based on their age and pushed them to retire. It further dismissed evidence suggesting that Angeles wasn’t a good regional director. A superior of Angeles delivered what could be described at best as a lukewarm review of his job performance, saying he was “timid and lacking confidence” and deficient with respect to leadership skills.

Appeals Court Revives Age Discrimination Claims

On appeal, the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) reversed the lower court’s decision and remanded the case for further proceedings. It rejected the lower court’s finding that the plaintiffs’ case failed because they didn’t apply for the job.

“[I]t makes little sense to require plaintiffs to demonstrate that they submitted an application when an employer declines to solicit applications and does not announce that a position is available,” the appeals court explained.

Circle K argued it made a benign business decision to move Angeles laterally into a different regional manager role. The problem, the court noted, was evidence that company leaders didn’t want an older person in the job. One executive allegedly made age-related comments, including that one plaintiff should “start thinking about retiring” as he was “too old for this business.”

That evidence, the court said, was enough to send the case to a jury. A reasonable jury could conclude that Circle K’s stated reason – that Angeles was uniquely qualified – was merely a pretext for age discrimination. Based on the circumstances, jurors could also infer that the decision not to post the opening was influenced by age bias.

The case was returned to the lower court for further development.

Key Takeaways for HR Leaders

Here are a few key takeaways from the court’s age discrimination ruling that HR should keep in mind:

• Always post job openings. Whether you’re hiring externally or promoting from within, job postings make the process open and transparent, reducing the risk and showing fairness. That also weakens any claim that you predetermined who would get the job.
• An employee doesn’t have to apply to claim discrimination. If your process effectively prevents people from applying, that can still create liability for unlawful bias.
• Age discrimination claims can exist even between workers over 40. Federal law protects employees 40 and older, and courts recognize claims when a substantially younger person is selected – even if both are over the age of 40.

Calderone v. Circle K Stores Inc., No. 24-1432 (9th Cir. 10/3/25).