To lower the risk of a failure-to-promote lawsuit, consider creating a cutoff point on your internal promotion list. For example, instead of considering all 15 potential candidates for an open position, consider just the top three. The disappointed candidates lower on the list will have a tougher time getting to court.
Here’s why: Title VII requires that candidates show they were qualified for a promotion in order to sue for discrimination. As the following case shows, those who don’t make the cut aren’t “qualified” and their cases will quickly be dismissed if they sue.
Recent case: Fairy Williams, a black female, sued the New Jersey Trenton Psychiatric Hospital when she was passed over for a job as a food service supervisor. The position was open to candidates who had experience or passed a food service test. The hospital considered only the three top-ranked applicants for the job.
Williams ranked No. 8. She sued for race discrimination because a white applicant got the job. But the court tossed out her case since she didn’t make the top-three-candidates cut. The court said that she had to show four things to get a jury trial: (1) She was a member of a protected class, (2) she was not hired, (3) someone outside her protected class was hired and (4) she was qualified for the job. Because only the top three candidates were qualified, she had no case. (Williams v. New Jersey Trenton Psychiatric Hospital, No. 04-06041, DC NJ, 2007)
Final tip: Decide ahead of time how many candidates you will interview and create a cutoff point, either based on experience or test scores, or a combination of the two. Then, inform those lower on the list they didn’t make the cut.
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