(Reuters) - Rejected job seekers who suspect discrimination can sue their would-be employers even if no one ended up being offered the position they were denied, according to a ruling on Friday from the 6th U.S. Circuit Court of Appeals.

The appeals court held in Charlton-Perkins v. University of Cincinnati that research scientist Mark Charlton-Perkins satisfied constitutional standing requirements to sue the university for declining to offer him an assistant professorship in 2018. Charlton-Perkins, a man, claimed that he was the top pick of a faculty search committee appointed to select the best candidate but was passed over because university officials preferred two lower-ranked female finalists for the professorship.

As soon as Charlton-Perkins was allegedly denied a job on the basis of his gender, wrote 6th Circuit Judge John Bush for a panel that also included Judges Eugene Siler and Eric Murphy, he suffered an injury and therefore has standing to sue.

That’s true, the 6th Circuit said, even though neither of the women who allegedly leapfrogged over Charlton-Perkins got the job he had wanted. In fact, no one was hired for the professorship. After university administrators tried to override the search committee, the head of the committee criticized their “plain discrimination.” The administrators, in turn, said that the search committee chair’s previous work with Charlton-Perkins had tainted the selection process (even though the search chair had disclosed the conflict and received approval to proceed). Ultimately, the university canceled the search and appointed no one to the job.

That outcome, according to the university's lawyers at Taft Stettinius & Hollister, mean Charlton-Perkins had not actually been injured. He didn’t get the job, the university said, but no one else did either – so he couldn’t claim that discrimination led to an adverse job outcome. And without that adverse outcome, the university contended, Charlton-Perkins had no standing to sue.

The university’s lawyers found an unpublished 6th Circuit case, 2014’s Reeves v. Tennessee Farmers Mutual Insurance Co , that presented seemingly analogous facts. A supervisor told a female job applicant that he wouldn’t promote her to become an insurance adjuster because he didn’t think women should have those jobs. She protested to company executives when he picked a male applicant instead. Almost immediately, the company nixed the initial selection, relaunched the search process and hired a different woman for the job. The original female applicant sued for discrimination based on the initial search process, but the 6th Circuit said the company’s quick action to nullify the tainted search meant that her discrimination claim “never ripened into an adverse employment action.”

“In other words,” the university argued in its 6th Circuit brief in the Charlton-Perkins case, “the Reeves court held there was no adverse employment action for a failure-to-hire claim until the job search was complete and a hiring decision was actually made.”

The university's arguments worked in the trial court . U.S. District Judge Timothy Black of Cincinnati cited the Reeves case and other unpublished opinions – including the 11th Circuit’s unpublished decision in 2013’s Terrell v. Paulding County – to conclude that Charlton-Perkins did not have standing to assert an unripe claim for discrimination. “All the candidates were treated the same; all the candidates were denied the position,” Black wrote.

But in reviving Charlton-Perkins’ case, the 6th Circuit said that, for the purposes of establishing a right to sue, the purported ripeness issue was "a red herring." Yes, the appeals court acknowledged, to allege discrimination under the Civil Rights Act, plaintiffs usually have to show that someone else got the job they would have been entitled to but for discrimination. Nevertheless, the appeals court said, that showing is not actually necessary to adequately allege an Article III injury.

“Charlton-Perkins suffered the de facto injury that he was not selected for the position,” the 6th Circuit said. “That de facto injury has nothing to do with whether someone else ever got the job.”

What’s more, the 6th Circuit held, Charlton-Perkins also adequately alleged that the university's cancellation of the job search was itself discriminatory. So even though the default rule is that rejected applicants must show someone else was hired for the job in order to establish employment discrimination, the appeals court said, it agreed with the other courts that have recognized an exception when employers cancel job searches to avoid hiring a candidate from a disfavored group.

“Thus,” wrote Bush in the 6th Circuit ruling, “not only has Charlton-Perkins alleged a ripe, de facto injury under Article III, but he has also plausibly pleaded an adverse employment action on the merits.”

I emailed University of Cincinnati counsel Evan Priestle of Taft Stettinius but didn’t hear back.

I also queried Charlton-Perkins lawyer Marc Mezibov about whether the 6th Circuit had created a split on the ripeness question. The appeals court itself seemed unconcerned about unpublished cases from its own and other courts: “True, those decisions seem to suggest that when an employer fails to hire a plaintiff and yet never hires anyone for the position, no adverse employment action occurs,” Bush wrote. “In our view, however, those cases are distinguishable at best and wrongly decided at worst.”

Mezibov agreed in an email response to my query. “I do not believe there is a split in the circuits,” he said. “The cases cited by UC were either district court cases or distinguishable on their facts.” All the 6th Circuit did in the Charlton-Perkins case, Mezibov said, was to clarify “what it takes to state a prima facie case of discrimination when a search is cancelled and no one is hired.”

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