Promotion, demotion decisions: Reducing the risk of bias

Promotion and demotion decisions are often subjective. So they leave employers open to charges of bias. To alleviate even the perception of discrimination when making promotion and demotion decisions, an employer should have sample letters and objective documentation, rules for dealing with unhappy employees and checklists for reducing the risk of bias in promotion and demotion decisions.

1. How should an employer react when confronted by an employee who has been passed over for a promotion?

Failure to get a promotion can be an ego-shattering experience for any employee, but it takes on a special significance when the employee is an above-average performer who has the respect and affection of other employees. At the very least, he/she may become discouraged about the future and performance is almost certain to decline. The resulting loss of loyalty and commitment can affect the attitude of other employees who may view their own futures accordingly.

It is your responsibility to convince employees who have been passed over for promotion that your decision is the correct one and, at the same time, avoid bruising their egos. Use these tips if confronted by a bypassed employee:

• When you’re dealing with a single employee who may have missed out on a promotion in a close decision, make it a point to specify the exact reasons for your decision. Let him/her know there were specific requirements and capabilities the other employee possessed that were closer to what the job demanded. Then discuss an action plan, which you can tie to the individual’s performance appraisals, that will focus on bringing the person into a better position for the next potential promotion. Analyze training options, strengths to be enhanced, weaknesses to be addressed, even programs outside work that might contribute to a faster advancement track for the bypassed employee.
• Keep your temper even if the employee loses his/hers. It’s normal for an employee’s disappointment to turn to anger. If you lose control, the session will turn into a confrontation between two angry people. Let them vent their emotions, then get on with the meeting.
• If you determine that an employee is definitely not promotable, don’t offer false encouragement. Explain that you value the particular skills and support they provide, and you are looking for them to continue to hold a key role in the department.

• Ensure all employees have equal access to promotion opportunities. Try posting openings on a central bulletin board, passing out memos, putting the information on the company intranet, or publishing the position in the company newsletter.
• Write clear, accurate job descriptions of all positions and update them accordingly. When publicizing openings, include the job description so employees know what skills, etc., are required.
• Print your promotion policy. Give every employee a copy. Make it a part of the company handbook; redistribute it when you post new openings.
• Consider forming a promotion committee. Use a diverse mix of supervisors and managers. Don’t leave the decision-making up to just one person.
• Above all, document. List the pros and cons of each applicant. For example, an employee will make a good leader, but his/her attendance is a problem. This will not only help you make an objective decision, but also defend it in court.

3. When making demotion decisions — especially those involving employees in protected classes — what factors should an employer take into consideration to avoid legal backlash?

Here’s a recommended course of action:

• Establish a progressive discipline policy. Let employees know demotion may be one of the steps.
• Investigate each disciplinary situation to get all the facts, plus any extenuating circumstances, that may have an effect on your decision to demote or not.
• Compare how situations of a similar nature were handled in the past.
• Make your decision based on all the above factors. If you decide to demote, be sure that it fits your normal disciplinary practices.
• Document your decision, specifying the reason why a demotion was the most appropriate course of action.

4. Do employees who feel compelled to ask for a lower position rather than quit have a legal leg to stand on in court?

Just as employees may claim “constructive discharge” when they feel that quitting is their only option for remedying intolerable working conditions, employees who ask for a transfer to a lower position, rather than quit, may claim “constructive demotion.” And a number of courts have ruled that constructive demotion claims are valid. According to one court, the litmus test for constructive demotion mirrors that of constructive discharge.

1. Working conditions so intolerable that a reasonable person would feel forced to take a lower position.
2. Bias motivated the intolerable environment.