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A Prospective Employee Cannot Bring a Common Law Failure to Hire Claim.

Failing to hire a prospective employee based on race violates public policy, but the employer will not have committed a tort against the prospective employee because it owed no duty to that person; a Tameny action for wrongful discharge can only be asserted against an employer. (Williams v. Sacramento River Cats Baseball Club, LLC - filed Sept. 24, 2019, Third District, 2019 S.O.S. 2792.)

In the above action, the plaintiff (Wilfert Williams) sued the defendant (Sacramento River Cats Baseball Club, LLC) in a common law tort action (amongst other statutory claims) for failing to hire him due to his race. In the published portion of the opinion, the court addressed plaintiff’s common law failure to hire claim and the applicability of Tameny. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).) While the court agreed with the parties that failing to hire a prospective employee based on race violates public policy, specifically the Government Code as well as our state Constitution, a prospective employee’s remedies are grounded in the Fair Employment and Housing Act4 (the Act). Tameny on the other hand requires “the prior existence of an employment relationship” between the parties upon which to predicate a tort duty of care. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900.) Because the defendant did not owe plaintiff any duty under Tameny and Miklosy, plaintiff cannot bring a failure to hire claim against defendant in a common law tort action and must instead proceed under the Act.

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