When promotion processes bypass qualified candidates, discrimination lawsuits are almost sure to follow. That’s because employees can easily poke holes in complex candidate-ranking systems, and supervisor bias emerges when promotions are on the line.
If you have set criteria for promotions—such as rating candidates on some scale and basing final scores on several weighed factors—make sure you follow your own rules. If you simply ignore them, you are setting yourself up for a lawsuit.
In addition, audit performance appraisal systems to make sure supervisors aren’t shortchanging employees who might soon be up for a promotion. If someone’s performance rating suddenly drops before a promotion opens up, be on the lookout for supervisor bias. A boss who wants to control who gets promoted may be using the appraisal system to build up preferred candidates while keeping others down.
And if the candidate who loses the promotion is of a different protected class than the “chosen” subordinate, there’s a good possibility you’ll be sued for discrimination.
Recent case: Karyn Risch worked as a police officer and got good . When she was up for possible promotion to detective, the department told her a written exam would count for 70% of the total promotion score, while 20% would be based on her latest and another 10% on seniority.
The three top-scoring applicants would then constitute the promotion pool, with the police chief choosing the winning candidate from that pool. In cases where there were two vacancies, the pool would grow by one additional candidate, and so on.
Over the course of several promotions, the police chief consistently chose male candidates, even though on several occasions Risch’s total score was higher. She was the only woman in any of the promotion pools. In addition, it turned out she would have been the top-ranked candidate several times—if the department had considered seniority. For some unexplained reason, it didn’t.
Plus, it turned out that Risch had recently begun receiving lower than she had before the promotion openings were announced.
She sued, alleging sex discrimination.
In court, Risch brought in several female and male officers who testified to an attitude of anti-female bias within the department. For example, officers said the chief had made it clear that he would “never have a female on the command staff.”
A trial court said Risch didn’t have any evidence that she was better qualified than the males who were promoted.
But the 6th Circuit Court of Appeals disagreed. It reinstated Risch’s lawsuit after concluding that a jury should decide whether she had been a victim of sex discrimination.
The court was particularly troubled by testimony that Risch’s evaluation scores dropped when promotion opportunities arose, and that the department had ignored her seniority even though it was supposed to count for 10% of the total score. In addition, the court said a jury should have a chance to weigh whether the alleged anti-female bias was a factor. (Risch v. Royal Oak Police Department, No. 08-1883, 6th Cir., 2009)
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