When it’s time to decide on promotions, do you send employees’ personnel files over to a supervisor or hiring committee to help make the decisions? Here’s an important point that many HR pros overlook: Make sure the files don’t contain references to past discrimination claims or investigations. Otherwise, you could be inviting a passed-over candidate to sue for retaliation.

Best bet: Develop a promotion protocol whereby HR screens a personnel file before releasing it to hiring managers or committees. That way, HR can keep prior discrimination complaints confidential so they can’t influence promotion decisions.

Strip the file of any references to potentially protected activity, including internal or EEOC filings and lawsuits.

Recent case: Jeanette Gary, a black deputy sheriff, filed several internal and EEOC complaints over a 20-year period. When she applied for a promotion, a committee made up of white males obtained her personnel file. It showed her history of discrimination charges.

The committee bypassed her and chose white males. She sued, alleging retaliation for her complaints.

The 11th Circuit Court of Appeals (which includes Georgia) said Gary met the first burden of her lawsuit: She showed that the promotion committee knew of her prior complaints and used that information in making its decision.

In the end, Gary lost because her employer was able to show it had other valid reasons for not promoting her (including performance evaluations). But the lawsuit could have dissolved much earlier if the hiring committee had never had access to her prior complaint history. (Gary v. Hale, Sheriff of Jefferson County, No. 06-12545, 11th Cir., 2007)  

Leave a Comment