It seems counterintuitive: Managers and supervisors must be colorblind when selecting employees, yet HR absolutely should track the racial and other characteristics of those who are promoted. Being able to document the resulting work force makeup is important protection should a disgruntled employee file a lawsuit.
If your promotion tracking documentation reveals an unexpected trend—for example, you promoted 20 employees and most were of a particular race—double-check to ensure you can show that all promotions were merit-based and not a sign of latent discrimination. Trot out those selection criteria and prepare to defend them as business-related.
Recent case: Carol Oleksiak, who is white, sued when she was passed over for promotion at the Social Security Administration (SSA). A startling figure triggered her lawsuit: Only two of 20 promoted employees were white.
But the SSA could justify its procedures. There had been more than 190 applicants for the 20 promotions. An immediate supervisor evaluated every employee who met the minimum requirements and ranked them on such qualities as dependability and ability to do their current jobs. All managers testified that race, sex, age and other protected characteristics weren’t factors.
The 3rd Circuit Court of Appeals dismissed the case. It’s not enough to show that only two white employees were promoted when the employer can show it used legitimate and reasonable factors to choose among so many qualified employees. (Oleksiak v. Barnhart, No. 06-1148, 3rd Cir., 2007)
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