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Tough economic times may mean more failure-to-promote suits

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in Discrimination and Harassment,Human Resources

In hard economic times, when employer labor budgets are stretched thin and raises are tough to come by, employees begin to see promotions as the only way to get a significant pay raise, short of taking another job altogether. It should come as no surprise then if litigation over missed opportunities and pay raises increases.

Here’s what you can do to protect your organization from failure-to-promote lawsuits.

If you aren’t already doing so, make sure every promotion decision is grounded as much as possible in concrete, objective decision-making. Then document how you made those decisions so you can later show how the process worked. It’s exceedingly difficult to explain to a jury why the candidate you chose was the best for the job when you have nothing—no notes, no test scores, no educational records—to back up your claim.

If you have those records, however, you easily will be able to counter charges of discrimination from a passed-over employee.

Your thoroughness puts the ball in the employee’s court. Now the runner-up has to show the jury that no reasonable employer would have chosen anyone but him. Good luck with that.

Recent case: Steven Goodin worked for the Army and applied for a promotion. When a woman was selected for the job, he sued, alleging sex discrimination. He said he was better qualified.

But the Army won the case quickly. It proved the woman had far broader experience, plus a master’s degree. She also impressed the selection panel with an excellent interview.

All Goodin had was an offhand comment by a member of the selection committee that it had preferred a woman. That wasn’t nearly enough to prove he was so much better qualified that no reasonable employer would have passed him over. (Goodin v. Harvey, No. 08-10684, 11th Cir., 2008)

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