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 certain promotion, those employees actually don’t 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 having any employee interested in promotions or job openings check the company web site. Then, include clear instructions on how to apply. Of course, make sure the system is accessible to everyone, including the disabled and those who don’t have computers. A lobby kiosk may do the trick. And don’t hand some employees the application while sending others to the computer—that may show the intent to thwart applications.
Recent case: Janice Dalzell wanted to be promoted and claimed she had been denied opportunities due to a 10% disability rating she received when she was discharged from the military. She claimed she tried to apply for an opening after her boss told her it would be posted on the organization’s web site.
Dalzell clicked around the site, but didn’t find the listing and gave up. She never called HR for help or asked her supervisor for more information. She simply sued.
The court tossed out her claim, reasoning that Dalzell hadn’t been denied a promotion since she never made a good-faith effort to apply. She simply gave up when she couldn’t find the posting. Plus, she wasn’t treated any differently than other applicants—they were all referred to the web site, too. (Dalzell v. Astrue, No. 2:05-CV-755, WD PA, 2008)
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