It seems logical enough: Employees shouldn’t be able to sue over promotions they never applied for. But in some cases where positions were never posted, employees have successfully sued, alleging they would have applied had they known there was an opening.
Fortunately, the 11th Circuit Court of Appeals won’t allow those employees an automatic win—if the employers can show that the workers never expressed a desire for any promotion.
Recent case: Greg Nance, who is white, sued his employer after an Asian employee was promoted to an engineering manager position that Nance believed he should have received.
The promotion was never posted, so Nance didn’t know it was open. If he had known, he argued, he would have applied.
But the employer testified that Nance had never expressed any desire for any promotions, or they would have considered him. The court dismissed his case. (Nance v. Ricoh Electronics, No. 08-16429, 11th Cir., 2010)
Advice: Post every job opening or promotion, along with the minimum requirements for the position. Include a cutoff date for applications and specify how employees can apply. Tell employees where they can look for openings, or include announcements on paystubs or in the company newsletter.
That way, you have clear evidence showing which employees were interested. It may mean processing more applications, but that’s better than having to defend an expensive and time-consuming lawsuit that you may or may not win.