In the evident belief that Starbucks meant easy bucks, three men in California launched a $26 million class action suit against the coffee chain after being asked an improper question on a job application form.

California’s labour laws prohibit an employer from asking a job applicant about prior convictions for minor marijuana possession if those offences are more than two years old. Any applicant who is subjected to such an inquiry is entitled to compensation of $200.

Starbucks’ forms asked applicants whether they had any convictions in the previous seven years but in a disclaimer on the other side of the paper, in very small font and submerged in what the court found was “a veritable sea of boldface type”, the form told applicants that the minor marijuana convictions need not be disclosed.

The plaintiffs said that that was not good enough and sued the company on behalf of 135,000 people who had applied for jobs using the same form since June 2004. They claimed that the part of the form which said they did not need to disclose marijuana convictions was too obscure and that their rights had been violated.

The trial judge accepted the plaintiffs’ arguments and Starbucks appealed. The appeal court then reversed the earlier ruling and threw out the plaintiffs’ case.

The appeal court ruled that a job applicant cannot recover damages just because a form asks an “impermissible” question if he actually understands that he has no legal obligation to answer that question. The men had testified that they understood when they were filling out the forms that they had no legal obligation to disclose marijuana convictions.

The court said it did not want to make a ruling that could create a whole new category of employment: professional job seekers whose quest is “to find (and fill out) job applications which they know to be defective solely for the purpose of pursuing litigation”. It ruled that the law protecting people with old and minor marijuana convictions was not intended to be enforceable by “bounty hunters”.

An Oscar Wilde character says: “Questions are never indiscreet. Answers sometimes are.” For Californian law, we need to modify that: some employers’ questions are indiscreet but they don’t trigger cash prizes for unharmed litigants playing spot-the-mistake on application forms.

Professor Gary Slapper is Director of the Centre for Law at the Open University

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