If you don’t regularly post your job openings and promotion opportunities, you are asking for trouble. Here’s why: Applicants and employees can sue if they believe they missed out on an opportunity—even if they never applied.
That litigation blindside may force you to justify your hiring and promotion decisions long after you made them. And if you didn’t keep careful records, you may be in trouble.
Recent case: Abby is a Native American, a member of the Lumbee Tribe. She was initially hired as a part-timer by the Robeson County Sheriff’s Department after she earned an associate degree in police science. Over the years, she worked her way up to full-time status, with the rank of sergeant.
In October 2006, Abby wanted a promotion to lieutenant. She told her supervisor about her interest, but never actually applied for a specific lieutenant position.
Meanwhile, the department promoted at least seven men to the rank of lieutenant. Abby sued, alleging sex and national-origin discrimination.
The department countered that, other than once mentioning her desire for promotion, Abby never took any other action. It reasoned that she couldn’t complain about not being selected if those doing the selecting didn’t know she wanted a promotion.
The court disagreed. Ordinarily, failing to apply means employees can’t allege they were denied a promotion opportunity. But in this case, that rule didn’t apply.
It turned out that the department didn’t have a straightforward way for announcing vacancies and other opportunities. Jobs weren’t posted. Instead, the department relied on supervisor recommendations to pick candidates. There was also no formal selection process. Generally, the individuals that supervisors recommended received promotions.
The court then treated Abby as if she had, in fact, applied for each promotion. That meant the department had to explain exactly why it chose each candidate and why each was a better choice than Abby.
Fortunately for the department, it had good records. Going through each promotion, it set out the reasons why Abby wasn’t the best candidate. It was able to show the special skills and training required for each job and that each of the promoted employees had those skills and training. The court tossed out Abby’s case. (Locklear v. Sealey, et al., No. 7:10-121, ED NC, 2012)
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