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Making Fair And Lawsuit-Free Promotion Decisions

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in Human Resources

When an employer makes a promotion decision between candidates who have similar qualifications, the courts will not second-guess the decision unless: 1) the passed-over employee is clearly better qualified, or 2) there is other evidence of discrimination in the decision-making process.


Case in point: An African-American employee filed a Title VII race discrimination lawsuit after he lost out on a promotion to an open supervisory position to a white employee. The black employee claimed that his supervisory experience showed that he was better qualified than the white employee, who did not have direct supervisory experience.


However, there were other differences in their qualifications. According to his supervisor, the black employee resisted national oversight, refused to accept responsibility for his mistakes, was not a team player, and lacked adequate legal knowledge. The white employee, on the other hand, established himself as a respected leader in his office; mentored others; made a large number of high quality decisions; became a resource on laws, regulations, and procedures; and served as an acting manager on many occasions.


Appeals court: The black employee failed to show that his qualifications were so significantly better than the white employee's that no reasonable employer would have chosen the white employee over him. (Hill v. Solis, 6th Cir., No. 08-4731, 2010)


When it comes to evaluating whether there is a significant difference in candidates' qualifications, the rejected candidate's opinion of how their qualifications compare to the chosen candidate's (or of what the company determines are important qualifications) is not enough. A rejected candidate's opinion is subjective and self-serving and does not create a genuine issue of material fact without either direct or circumstantial evidence that the employer's explanation for the promotion decision is a pretext for discrimination.


Short of showing superior qualifications, if the rejected candidate is equally as qualified or is better qualified than the successful candidate, they can support their discrimination claim by introducing other evidence of discrimination. There was no such evidence in Hill.


Courts may consider the following as evidence of a discriminatory promotion decision:  

  • Comments evincing an animus based on race or another protected characteristic.

  • A history of denying promotions to employees because of a protected characteristic.

  • Unreasonable, idiosyncratic qualifications. It is not unreasonable for employers to prefer highly qualified candidates; employers do not have to accept everyone who possesses the bare-minimum qualifications for the job.

  • Inaccurate assessment of qualifications.

  • Inconsistent reasons for rejection, e.g., telling the employee at the time the decision is made that it was based on performance, but then testifying at trial that experience was the determining factor.

  • A "secret" promotion process in which employees don't know which promotions will be considered and when. Better: Establish a standing list that employees can sign, which is then closed once the process to fill the position begins, or post promotional opportunities and give employees a certain amount of time to apply.

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