Employers that compile promotion lists based on test results should tell employees that the lists will be updated periodically.
Recent case: Joseph Carroll, a white firefighter, had moved from ninth place to second place on the fire department’s 2004 promotion list. All top four firefighters on the old list were white. In 2007, the department administered a new test and created a new promotion list. That list included more black firefighters and Carroll was no longer in the second position.
He sued, alleging the new list was purposely created to discriminate against white firefighters like himself.
The court dismissed his case. It reasoned that the fire department was free to retest and create new lists according to its own schedule. Carroll had no proof that race had anything to do with that decision. (Carroll v. City of Mount Vernon, No. 10-1311, 2nd Cir., 2011)