It’s easy to feel paralyzed when it’s time to choose an employee to promote. You need to pick the best candidate for the promotion, but you also don’t want to risk a discrimination lawsuit.
You know not to consider race, sex, age, disability and other protected characteristics—and you may even know not to snub a candidate who once filed a discrimination complaint.
Advice: Take a deep breath and pick the candidate you truly believe is best suited for the job, based on the person’s experience and attitude. Document your reasons. Then relax. The truth is, if your choice is reasonable, a court probably won’t second-guess it.
Recent case: Roxanne Hercules, who is black and over age 40, had a history of filing (and losing) discrimination claims against her employer, the U.S. Department of Homeland Security. However, she had received regular promotions throughout her career.
When she was passed over for two promotions, she alleged discrimination and retaliation. No black employees were promoted, and Hercules thought she may have been blocked because of her past complaints.
But she couldn’t provide any direct proof of discrimination. The department presented its well-documented decision-making process. At each stage of the promotion process, the department had fully apprised candidates about how the process worked.
Without contradictory evidence of discrimination, Hercules would have had to show she was clearly more qualified than the candidates who did receive promotions. All she could point to was that she had a master’s degree and the others did not. But neither job required an advanced degree.
The court dismissed her case. (Hercules v. Department of Homeland Security, No. 07-0270, SD CA, 2008)
Final tip: You don’t have to go to extremes to prevent past discrimination complaints from entering into the promotion process. There’s no need to bring in a fresh decision-maker who doesn’t know the history. Instead, concentrate on matching candidates to the job and document how the promoted employee best met the job’s requirements.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- EEOC targets teen harassment; Ruby Tuesday pays $255,000
- Work environment: There's ugly and then there's biased
- Retaining younger workers but terminating older ones? Better have a good reason
- Employer wins battle to withdraw recognition of struggling union