Sometimes promotions move quietly through the ranks.
No job posting, no formal applications, just a quiet internal decision.
A recent Ninth Circuit decision reminds employers that even those informal moves can create risk under the age-discrimination laws.
TL;DR: Three longtime employees in their 50s sued after their company quietly promoted a younger manager to a regional-director job without ever opening it up for applications. The Ninth Circuit said they didn’t need to prove they applied for the position when the company never gave them the chance.
đź“„ Read the opinion
The “unposted” promotion that started it all
All three employees had strong records as Dealer Business Managers. They earned awards, solid reviews, and had told leadership they were ready for a promotion.
Then, when the Regional Director position opened, no one told them.
Instead, the company selected a 45-year-old who had been running another region.
The older employees sued under the Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA), arguing that they were denied the opportunity to compete because of their age.
A lower court sided with the employer. The Ninth Circuit didn’t.
How a quiet promotion became a jury question
The court’s most important finding was that the employees didn’t need to apply for the job to have a valid discrimination claim.
Here’s why: they never got the chance.
The company never posted the Regional Director position or invited applications. It simply filled the role internally. The court said it would make “little sense” to punish employees for failing to apply to a job they didn’t know existed. That kind of reasoning, the court explained, would let employers sidestep discrimination laws just by keeping openings quiet.
That approach built on earlier rulings holding that discrimination laws don’t require employees to apply for a position that was never announced or available to them. If an employer limits access from the start, employees who are excluded can still claim they were treated differently because of their age.
After addressing that threshold issue, the court turned to whether there was enough evidence to let a jury decide if age bias played a role. It focused on two main questions:
-
Did age appear to matter?
The company argued the age gap—about nine years—was too small to prove bias. But the court said smaller gaps can still matter if there’s other evidence that managers viewed age as significant, such as comments about retirement or preferring “younger MBAs.” -
Was the company’s explanation believable?
The employees pointed to several red flags:
• Executives allegedly made age-related comments and encouraged older workers to retire.
• The person selected had a weak performance record.
• The company ignored its usual practice of posting job openings internally.
That combination, the court said, was enough for a jury to decide whether age bias played a role.
What HR and employers should take away
-
Don’t skip the posting.
Even if you already know who you want, announcing the opening shows transparency and fairness. -
Be consistent.
Follow your usual process for internal moves. A “one-off” exception can look like bias. -
Coach, don’t comment.
“You’re too old for this business” isn’t feedback. It’s Exhibit A.
“We need younger energy”?That’s a compliment.That’s evidence. -
Document interest in promotions.
If employees say they want to move up, make a note of it. HR memory fades faster than email threads.
The bottom line
Quiet promotions can make business sense, but they also create legal risk when others are left out of the loop.
Post it, announce it, and give everyone a fair chance to raise their hand.
Transparency costs little – and avoids a lot more.