Your best defense to a failure-to-promote claim is proof that you posted the job but the employee never applied. But how do you prove that?
With a policy that requires posting all internal openings and also requires employees to express their interest by actually applying, not just telling a supervisor that they’re looking for a promotion.
Advice: Create two written policies. One should explain that openings will be posted and tell employees where to look. The second policy should state that only employees who actually apply for a posted position will be considered.
Recent case: Richard had a spotty history with his employer, an auto parts retailer. He started as a cashier and worked his way up to manager, only to be demoted to assistant manager after his boss accused him of sexually harassing her. On Valentine’s Day, he allegedly sent her a stuffed animal, a box of chocolates and a suggestive greeting card depicting a bed surrounded by undergarments strewn on the floor. When opened, it played the Rolling Stones’ song “Let’s Spend the Night Together.”
After he was demoted, Richard was also admonished for not reporting an incident of sexual harassment in which a manager allegedly grabbed a cashier’s breasts. Company policy required supervisors like Richard to directly report harassment and not just refer the victim to HR. Ultimately, the accused manager was terminated.
Richard cooperated in the investigation, but still received a warning for failing to properly report the incident.
In the months following his demotion, Richard claims he sought opportunities for promotion. The company hired seven new managers, but never promoted Richard.
He sued, alleging that the real reason he wasn’t promoted was that he is Asian and that his Hispanic supervisor would only consider white or Hispanic applicants.
The company countered that it had a clear policy requiring every interested employee to apply in writing for any openings. It claimed that all promotional opportunities were posted where employees could find them. It said it had no record that Richard ever applied for any of them.
The only problem with that argument was that the company couldn’t show it had actually posted the jobs.
It had no documentation that showed how, when or where it posted the jobs or how Richard would have known about them.
Under those circumstances, the court said Richard’s failure-to-promote case should go to trial. (Phan v. CSX Auto, No. 11-CV-02327, ND CA, 2012)
Final note: This looks like a case in which the employer believed that a worker wasn’t cut out for a supervisory role and then took steps to make sure he wouldn’t be promoted. In its defense, sending the boss a suggestive Valentine is a bad idea that showed spectacularly bad judgment on Richard’s part.
Perhaps his managers thought it best to simply ignore Richard and hope that his ambitions and he would go away. That was a bad bet. The better approach would have been to carefully follow their own rules.
Best practice: Let everyone who is eligible for promotion apply. Then consider each individual on his or her merits, taking into account past disciplinary problems, skills, talents and abilities. Simply sidelining someone without any explanation can backfire into a needless and expensive lawsuit.
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