Can employees sue your organization for failing to promote them to jobs they never even applied for? It seems crazy, but it could be true. Courts are increasingly opening a backdoor way for employees to bring failure-to-promote claims, even if they never formally applied for the promotion.
Typically, to bring a failure-to-promote bias lawsuit into court, an employee must prove he or she applied for the job. But in the following case, the court says that if employees merely express interest in a position (not formally apply), they could satisfy the application requirement.
Best move: To avoid liability, establish a clear, consistent promotion process. Require that only applicants submitting written applications will be considered for promotions. Make sure you advertise promotional opportunities to the widest possible pool of candidates, internally and externally, and instruct managers never to discourage anyone from applying. Keep careful records of applications.
Recent case: Charlina Williams, an African-American sales manager, accepted a transfer from the Las Vegas office to the company's New York office. Ten months later, she asked to return to Las Vegas and applied for several jobs. But Williams got mad when the company filled a sales manager position (for which Williams hadn't applied) without soliciting applications. She resigned and sued, saying the company knew she was seeking a manager job and its failure to promote her was discriminatory.
While a federal appeals court dismissed the suit (saying Williams wasn't qualified), it did address the issue of her failure to apply for the unadvertised positions. It said that if an employee simply expresses an interest in a promotion to a particular class of positions, that general expression can satisfy the "application" requirement in failure-to-promote cases. (Williams v. R.H. Donnelley Corp., No. 02-7681, 2nd Cir., 2004)
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