Do you routinely keep unfilled positions open and posted? If so, consider removing them until your organization plans to actively recruit to fill them. Otherwise, an employee who is disgruntled for not having been promoted may see the posting and try to argue that he or she is being retaliated against for prior complaints.
Recent case: Back in 2001, Cathy Cook, who is white, didn’t get the promotion she applied for. A black candidate, who she considered less qualified, was promoted instead. However, another position had remained open for years. Cook asked to be considered for it.
She then filed a retaliation complaint about the 2001 decision. However, since it had been more than 180 days since she had been turned down for that promotion, the court dismissed the case. She had missed her filing deadline with the EEOC. She tried to argue that the ongoing open position had been denied to her as retaliation. When the company explained that it never sought candidates for the position and never intended to fill it, the court dismiss her lawsuit.
Had the company simply removed the posting, it could have saved itself time and legal fees. (Cook v. Mississippi Department of Human Services, No. 06-60788, 5th Cir., 2007)
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