Employers that provide clear rules on what employees must do before being considered for promotions can reduce the possibility of failure-to-promote lawsuits.
That’s because employees who don’t follow those clear rules can’t argue they weren’t promoted on account of their membership in a protected class. They lost out because they didn’t follow the rules.
Recent case: Rahmon is black and of Nigerian national origin. He works for a California state agency, the California Public Utilities Commission.
Over the years he was promoted several times to progressively higher positions based on his scores on various civil service exams and during accompanying interviews.
Then he hit a promotional brick wall. He claimed that when the commission posted a promotional opportunity for a higher-level job, he was unable to apply because his civil service standing to take the relevant test had expired and he couldn’t retake the test until after the closing date for selecting a candidate. He claimed this was essentially a plot to post the job early rather than wait a few months until he could take the test again.
The agency argued it posted the job when it did because there was a looming hiring freeze. Plus, it said it was up to Rahmon and other candidates to keep track of their eligibility and renew testing before old results expired. It explained that the rule was well-known and that Rahmon simply didn’t do his part.
The court agreed and tossed out the case. (Momoh v. California Public Utilities Commission, No. A140088, Court of Appeal of California, 2015)