fwiw, and this is certainly not my forte, i'd rather be an asshole than a defendant in a lawsuit like that
If you are a small startup in a high tech hub trying to attract people, and especially if you are in a market where the programers you reject might be future customers then you're risk is different.
Companies often forget that the people they reject don't disappear. It used to be a big thing in merchant banks in the last boom to really grind and humiliate candidates - you aren't smart enough to work here etc. What they forgot is that those people went to work for companies that might need a merchant bank and that the victim is suddenly the customer.