If you have gone without a formal system for promoting from within—no posting open positions or a casual application process—just because you’re a small employer, watch out!
You must still make sure you track the decision-making that goes into each promotion. If a disappointed employee sues, you must be able to explain why some employees were promoted over others.
Recent case: Rose Fitzpatrick was hired as a newspaper editor when she was 45 years old. A few years into her career, she became interested in an executive city editor position—which would have been a promotion. But she learned that the position was “frozen” due to budget problems.
A few years later, Fitzpatrick developed breast cancer. She took about a week off for surgery and then returned to work.
Then she learned that the paper had a new position—web editor—and had also opened the executive city editor position. Both were filled quickly with younger male editors.
Fitzpatrick sued under the California Fair Employment and Housing Act (FEHA), alleging sex, age and medical condition discrimination. She complained that she had never been interviewed for either position even though her supervisors knew she would have been interested and that the jobs had never been posted.
The newspaper countered that it had no formal promotion process and never posted positions. It did, however, have good records to show how it made the promotion decisions. Those records showed that it had considered Fitzpatrick for promotions, but rejected her because of well-documented problems she had in getting along with co-workers and those she supervised.
The court tossed out Fitzpatrick’s case, concluding that there was no evidence of any type of bias. (Fitzpatrick v. Media News Group, No. B207866, Court of Appeal of California, 2nd Appellate District, 2010)