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Use formal process to promote from within

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in Discrimination and Harassment,Human Resources

While courts seldom want to second-guess employment decisions, sometimes employers provoke that scrutiny.

That can happen, for example, when companies rely on the “old boy network” to promote from within instead of using a more formal, organized process. It’s not that you can never use an informal process. It’s just that if you do, you have to make sure you actually consider everyone who has expressed an interest in the job.

Recent case: Nicholas Licausi, who was a senior director at Symantec, was 65 years old when his position was terminated. Symantec said the reason was a reduction in force, but Licausi said it was age discrimination.

He sued, alleging that another, younger employee had been picked for a promotion during the reorganization that accompanied the reduction in force.

The company said that its managers had selected the most qualified person for the promotion and that the decision process had been a fast one because the manager in charge of the reduction in force had a very short time frame in which to make many cost-reduction decisions. Symantec didn’t post the position, but relied on the manager’s informal assessment of the best candidate.

Licausi pointed out that he had told the manager he was interested in promotion opportunities. He argued that since the job wasn’t posted, his expressed interest was the same as an application. He said the company had to justify its decision by showing that it had legitimate, nondiscriminatory reasons for picking the employee it did.

Fortunately for the company, the court ultimately concluded that Symantec had not discriminated because it had good reasons for picking the candidate it selected. (Licausi v. Symantec, No. 08-60544, SD FL, 2009)

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