There’s plenty of upside to promoting from within, but one legal risk is often overlooked. The seemingly benign career-development and succession-planning strategy can spawn a rise in failure-to-promote lawsuits.
When disappointed internal candidates don’t get that coveted promotion, they may decide to sue.
Private employers are generally free to decide when to hand out promotions and raises, unless an employment contract or collective bargaining agreement exists.
But you still must keep discrimination out of your promotion process. Reason: Promotions fall under the heading of “terms, conditions or privileges of employment,” meaning they’re covered by both state and federal anti-bias laws.
So make sure your promotion decisions don’t discriminate against employees because of age, race, religion, national origin, color, sex, pregnancy or disability.
Do that by basing every promotion decision on neutral, job-based criteria.
Most failure-to-promote suits hinge on inconsistencies in your job-filling process. To ensure a discrimination-proof selection process, you should:
1. Analyze the position. Define which characteristics are essential to the job, including manual and creative skills, education, training and supervisory or managerial ability.
2. Determine neutral criteria for screening candidates, such as the employee’s work record.
3. Develop a promotion policy. Consider whether to give seniority preference and whether you should publicize job opportunities within the organization before looking outside.
Tip: Don’t require an onerous minimum length of service to be eligible. That only penalizes fast learners or top performers.
4. Train hiring managers to base promotion decisions on neutral, job-based criteria applied equally.
5. Analyze your promotion system for bias. Make sure it doesn’t eliminate certain categories of people from job advancement. Distribute job announcements widely, not just in public spaces of your workplace.
6. Avoid making specific promises in company handbooks, job interviews and employment contracts that commit you to handing out promotions.
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