If you want to avoid needless failure-to-promote claims, create an automatic application process and make sure managers and all employees understand how the new system works.
Here’s why: Courts have said that if employees let their supervisors know they may be interested in a promotion, those employees don’t actually have to apply to claim they were discriminated against in the process. But if everyone knows there is one specific way to apply—indeed the only way to apply—then employees can’t make that claim.
One good approach is to automate the system by requiring all employees interested in any promotions to submit online résumés indicating their job interests. When there is an opening, HR automatically sends employees an e-mail announcing the vacancy. Employees “apply” by responding.
Recent case: James Witherspoon, who is black, worked for Norfolk Southern and wanted a promotion into . He understood that all promotions went through the railroad’s online job system, and that those interested in promotions had to submit their résumés through the online link. Then, he knew, when openings came up, he would get an e-mail announcement. It was then up to him to respond.
When he was fired for an unrelated problem, he sued and claimed he had not been promoted because of his race. The court threw out the case, reasoning that he never applied for a promotion and therefore couldn’t have been rejected because of his race. (Witherspoon v. Norfolk Southern, No. 5:06-CV-469, ED NC, 2008)
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