In Fisher v. Town of Orange, the U.S. District Court for the District of Massachusetts held that a female employee could sue her employer for hiring discrimination even though the employer had hired her over another male applicant.

In August 2007, Rebecca Fisher applied to be a full-time firefighter for the town of Orange, Massachusetts. Fisher alleged that after she applied, the town put the hiring process on hold and implemented an independent applicant assessment procedure. The town had never before utilized this independent assessment process, and Fisher alleged that it never conceived of utilizing this process until after she applied. Fisher was assessed in early October 2007, received the top rating, and was asked to interview. Before her interview, a male candidate (who was deemed less qualified than Fisher by the independent assessment) told Fisher that he had been offered the position. During Fisher's interview, one interviewer asked Fisher if she thought she would be accepted by the other firefighters, and another remarked that he did not think the town was ready for a female firefighter. The next day, the town's fire chief offered Fisher the job after telling her that the town administrator said that he "could not see a way around" hiring Fisher. Fisher claimed that she was subjected to a hostile work environment after she was hired and she resigned in May 2008.

Fisher sued the town, alleging that the town had violated Title VII of the Civil Rights Act of 1964 by engaging in gender discrimination in its hiring practices. The town moved to dismiss the claim, arguing that Fisher could not maintain a discriminatory hiring claim because she had been hired over a male applicant.

Although a discriminatory hiring case typically requires a plaintiff to establish that he or she was not hired, a plaintiff's prima facie obligations can vary based on the facts of each case. The District Court noted that the central focus of a gender discrimination case is whether a plaintiff was treated less favorably because of his or her sex. The District Court held that Fisher's allegations that the town engaged in a substantial delay in the hiring process because of her gender could constitute discrimination under Title VII. The District Court further held that Fisher did not need to show that another person was hired instead of her; rather, she needed only to demonstrate that the town sought a replacement for her. The District Court found that Fisher satisfied her prima facie burden of hiring discrimination because she alleged that (1) the position was offered to a less qualified male; (2) one interviewer said the town was not ready for a female firefighter; and (3) she was offered the job only because the town did not see a way around it.

This decision turned on the specific facts of Fisher's complaint, which were deemed to be true at the motion to dismiss stage prior to any discovery. Nevertheless, it serves as a reminder that employers must ensure that the hiring process, in addition to the ultimate hiring decision, is fair and free from any conduct that could be perceived as discriminatory. Comments made during the hiring process, delays in the decision, or altered hiring procedures could support a discriminatory hiring claim, even if an individual is ultimately hired.