One of the most important factors in promotion discrimination cases is also one of the easiest to control. The courts may not care that your decisions on whom to promote were perfectly rational; they want proof that you used the same factors for each candidate, flawed or not.
That’s why it’s crucial to document each and every decision so you can prove you followed your own rules.
Recent case: Eric Deravin, a black male, worked for then-Commissioner Bernard Kerik at the New York City Department of Corrections. When a woman with whom Kerik had been romantically involved filed sexual harassment charges against Deravin, he mounted an aggressive defense.
Ultimately, the courts cleared Deravin. That’s when he claimed his career stalled, allegedly because of race discrimination—and because Kerik was out to get him in retaliation for winning the case brought by Kerik’s former paramour.
At issue were 10 promotions to assistant deputy warden that Kerik awarded in 2000. Deravin wasn’t promoted and charged race discrimination.
Kerik explained how he arrived at the promotion decisions. He said no one factor made or broke a promotion, but that he considered education, military service, seniority and any alleged misconduct, and then picked the candidates as he interviewed them (meaning he didn’t wait until everyone had been interviewed). This process, although perhaps not the most rational approach, wasn’t discriminatory.
But Kerik didn’t testify about the specifics of two out of the 10 promotions. Because he didn’t, Deravin will have a chance to prove to a jury that race discrimination was the real reason the two were selected instead of him. (Deravin v. Kerik and New York City Department of Corrections, No. 00-CV-7487, SD NY, 2007)
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