Employers have plenty of leeway when deciding which employees deserve to be promoted—as long as they document the decision-making process. Chances are a court won’t second-guess their choices.
Just ask yourself this basic question: Have I passed over a candidate whom a reasonable person would have selected because his qualifications were superior to the person I picked?
If the answer is “no,” you’re making the right decision. Then document your reasons.
Recent case: Chatree Sridej, who is of Thai descent, sought a promotion that eventually went to someone outside his protected class. He sued, alleging national origin and race discrimination.
But his employer could show it had picked the other candidate because he had more experience. The court tossed out the case because Sridej couldn’t prove he was such a superior candidate that no reasonable person would have rejected him in favor of the other candidate.
It wasn’t enough that he was qualified for the position. He had to show he was the far superior choice. (Sridej v. Brown, et al., No. 09-12314, 11th Cir., 2010)
Final note: Courts are naturally suspicious of subjective promotion factors like “good” personality traits because they aren’t readily measurable. As much as possible, use easily quantifiable criteria such as education level, experience and training.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Track your fair and equitable discipline to prove you don't discriminate
- Don't sweat minor compensation differences
- Bullet-proof your promotion process: Tell everyone to forward notes and documents to HR
- Know when to worry about discrimination--and when court will rule 'no harm, no foul'