Your informal promotion process: A legal red flag

Most HR professionals recognize the legal risks of hiring outside applicants, but they often let down their guard when it comes to internal promotions.

That’s not wise, as shown by the increasing number of class-action lawsuits targeting informal promotion programs.

Promotions fall under the heading of “terms and conditions” of employment, meaning they’re covered by both state and federal anti-discrimination laws, including Title VII. So, if your promotion practices or policies are tainted by age, sex, race, religion or disability discrimination in any way, you’re a sitting duck.

Smart move: Post internal promotion opportunities. The law doesn’t require it but, by posting them, only employees who follow the posting’s directions can sue if you don’t select them.

If a company’s promotion process is informal, a court will likely allow employees to file failure-to-promote discrimination lawsuits even if the employee inquired only casually about the promotion and didn’t formally apply.

Recent case: Ronnie Goss sued for race discrimination, alleging his supervisor rejected his informal request for a promotion. The company didn’t post promotion opportunities.

His employer said Goss never formally applied and, therefore, couldn’t sue. The court disagreed. When an employer lacks a clear application process, the court said, even employees who ask informally for information on promotions can sue. (Goss v. Bernier, et seq., No. 05-CV-9592, SD NY, 2007)

Final tip: Require promotion applications in writing by a cutoff date.