What’s the hottest employment law trend? Class actions, in which attorneys target employers whose policies they claim essentially disenfranchise entire groups of employees who belong to a protected class.
The rise of class actions makes it essential for HR professionals to explore exactly how their companies dole out training and promotion opportunities. If individual supervisors or managers have too much discretion, there may be trouble ahead. An “old boy” network may be alive and well.
But you can take some simple steps to assess the situation and adopt a process based on objective assessments of who is ready for promotion and who is best qualified.
Start by looking at the company demographics and who has received internal promotions. For example, if there is a large group of black, Hispanic or female employees in entry-level positions, and the next few levels are filled with white males, there may be a problem.
Next, find out what factors really go into selecting your candidates for promotion. If it’s whom you know and not what you know, that’s a warning flag. Then design a transparent promotion program that allows training opportunities for all and promotes applicants based on clear, objective standards such as experience, training and education.
Recent case: When a federal court heard testimony about the promotion practices at Lufkin Industries, the judge awarded 700 black employees more than $3.4 million in back pay. The employees were able to show that the company routinely ignored a union contract that called for seniority as the main qualification for promotion.
Plus, they showed that the mostly white, front-line managers handpicked which employees under their supervision got on-the-job training opportunities. Coincidently, most of the selected employees were also white. Since training was one of the factors for promotion, naturally more white employees were promoted than black employees, who hadn’t received any additional training.
If that weren’t enough, it appeared as if there were no clear promotion processes in place for higher-level jobs—that is, for salaried positions. An expert witness testified that if there was no discrimination at play, black employees would have received far more promotions.
Based on all the evidence, the trial judge said the 700-member class had been the victim of systemic discrimination.
The employer appealed, but the 5th Circuit Court of Appeals refused to overturn the promotion award. (McClain, et al., v. Lufkin Industries, No. 05-41417, 5th Cir., 2008)
Final note: You may even want to hire a statistics expert to see whether prejudice lurks in your promotion practices. A statistician can tell you how many members of each protected class should have been promoted if there were no discrimination at work. Get your attorneys involved in the process, too. They can help you come up with promotion practices that rely on objective measures.
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