When promoting from within, one of the best ways to protect against retaliation claims is to use a promotion panel.
If possible, make sure panel members don’t know about any complaints any of the candidates might have previously filed. That way, if the employee who says he’s being retaliated against doesn’t get the job, he can’t blame it on the panel’s knowledge of his prior protected activity.
Recent case: Lesley Stephens, who is black, filed a discrimination claim against his employer, the city of Chicago. The matter was settled. Then Stephens applied for four promotions and was not selected for any.
He sued, alleging retaliation.
But the city was able to show that each promotion panel was made up of people who knew nothing about his prior complaint or settlement. Plus, the panels kept good notes detailing the strengths and weaknesses of all the candidates. The city could show the court that Stephens gave weak answers to some of the most important questions. The court tossed out the case. (Stephens v. City of Chicago, No. 08-1416, 7th Cir., 2009)
Final note: Before settling a case, ask your attorneys whether it’s feasible for the settlement to require the employee to resign and never again reapply. That may drive up the cost of the settlement; it also means that the litigious employee will never sue you again.
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