In today’s tough economic climate, more and more employees are willing to stay put, applying for promotions instead of looking for jobs in other organizations.
That means more competition for promotions—and more opportunities for disgruntled employee to sue when they’re passed over.
To protect yourself, review your promotion practices now. Track applications and any records, such as interview notes, that show how you select the best candidate. Then rest assured that a rejected employee won’t be able to show that someone with inferior qualifications got the job.
Keep the job announcement, job description and minimum-education and training requirements. Document how each applicant meets or exceeds selection criteria. Your job is to pick a well-qualified applicant based on as many objective measures as possible.
Unless you’ve passed up a clearly better-qualified candidate, courts probably won’t second-guess your decision. With the data at your fingertips, you can easily satisfy the judge that prejudice wasn’t the real reason you picked one candidate over another.
Recent case: Sowatei Lomotey, who is black, applied for a promotion with the state Department of Transportation. When he didn’t get the job, he sued, alleging race discrimination.
But the 2nd Circuit Court of Appeals said Lomotey couldn’t make a solid case. He wasn’t able to show that his qualifications were so obviously superior to those of the successful candidate that he should have been awarded the job. (Lomotey v. Department of Transportation, No. 09-0466, 2nd Cir., 2009)
Final note: Lomotey also said that white employees got more chances to take temporary positions that boosted their promotion potential, and that he had been denied the same opportunity. He lost that claim on a technicality.
Remember, you must make training available to everyone.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Was that race discrimination, or just a personality conflict?
- No Title VII protection for illegal immigrants
- Wear kid gloves with accommodation requests; they are 'protected activity'
- Never let fired employee unfairly blame bias; be prepared to prove performance deficiencies