To counter discrimination in promotion claims, be sure you can show that the selected employee was a better candidate in as many ways as possible. That makes it much harder for a disappointed candidate to prove he was clearly better qualified.
Recent case: Shuithol worked for the Department of Labor. He applied for a promotion but a woman got the job instead. He filed a sex discrimination lawsuit, claiming he had better educational qualifications.
But DOL came forward with a long list of other factors it considered, including productivity measured in the number of dollars the female candidate had collected from employers for wage-and-hour violations.
The court dismissed Shuithol’s suit, explaining that he had not shown that his credentials were so far superior to the other candidate that no reasonable, impartial decision-maker could have chosen the other candidate. (Moy v. Perez, 2nd Cir., 2017)
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