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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Can A Discriminatory Failure To Promote Be Proven With Evidence That An Unqualified Individual Was Selected?

female employee sad

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from discriminating against any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.  Under Title VII, employees are protected against discrimination with respect to the entire spectrum of the compensation, terms, conditions, or privileges of employment.  This means that the prohibition against discrimination in the workplace applies to all employment decisions, including promotion decisions.

Judicial Hostility Towards Failure To Promote Claims

For decades, courts have manifested a thinly veiled hostility towards discriminatory failure to promote claims.  This hostility is reflected in judicially-create rules that are used to dismiss discriminatory failure to promote claims.  For example, when employees attempted to support a discriminatory failure to promote claim with evidence that they were more qualified than the individual selected, the U.S. Eleventh Circuit Court of Appeals in a long line of decisions, including Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir. 2000), required a showing of “disparities [that] are so apparent as virtually to jump off the page and slap you in the face.”  Until struck down by the U.S. Supreme Court in Ash v. Tyson Foods, Inc., 126 S.Ct. 1195 (2006), the Eleventh Circuit’s “slap you in the face” standard was used by courts to dismiss an untold number of discriminatory failure to promote cases.  In dismissing discriminatory failure to promote claims with judicially made-up rules, courts emphasized, just as the U.S. Tenth Circuit Court of Appeals in Simms v. Oklahoma Dept. of Mental Health, 165 F.3d 1321 (10th Cir. 1999), that their “role is to prevent unlawful hiring practices, not to act as a super personnel department that second guesses employers’ business judgments.”

Having litigated discriminatory failure to promote claims for almost twenty years, our Alachua County, Florida employment discrimination attorneys have learned that employers frequently maintain that the employee claiming a discriminatory failure to promote was not selected because he or she did not satisfy the requisite qualifications for the position.  Despite characterizing the employee who was not promoted as unqualified, employers often select an individual who did not possess the requisite qualifications for the position.  The decision by the Tenth Circuit in Randle v. City of Aurora, 69 F.3d 41 (10th Cir. 1995) is instructive in showing that an employer’s selection of an unqualified individual can be used to prove a discriminatory failure to promote and compel courts to fulfill their professed role of preventing unlawful employment practices.

Person Selected Did Not Satisfy Qualification Requirement

In that case, Ofelia Randle (Randle), an Asian woman of Filipino national origin, brought a Title VII action against the City of Aurora (the City) alleging a discriminatory failure to promote.  Randle claimed that she was passed over for promotion in favor of a white woman because of her race and national origin.  During her employment with the City, Randle applied for the position of Technician III.  According to the City, the position required an associate’s degree.  The City refused to certify Randle’s application for the position because she did not have an associate’s degree.

As no other internal candidates met the requirements for the Technician III position, the City hired an outside white candidate named Richards for the position.  Although Richards lacked an associate’s degree, the City nonetheless considered her two years of college a sufficient substitute.  Then when the City learned that Richards had not actually completed two years of college, it chose to allow her to remain in the position even though it customarily fired employees for misrepresenting material facts on their employment application.

Employer Flouted Qualification Requirement

The trial court ruled that Randle was not qualified for the Technician III position because “she had no college credit whatsoever” and dismissed Randle’s discriminatory failure to promote claim.  On appeal, the Tenth Circuit reversed the trial court’s decision and reinstated Randle’s discriminatory failure to promote claim.  In reversing the trial court, the court of appeals explained the fact that Randle had “no college credit whatsoever” did not disqualify her for the Technician III position because the City allowed Richards to remain in the position after discovering that she did not meet the qualification requirement of an associate’s degree.  The appellate court further found that because the City flouted its qualification requirement of an associate’s degree by hiring Richards and then refusing to fire Richards after discovering her misrepresentation about her qualifications, a jury could conclude that the City’s claim that Randle was not qualified for the Technician III position because she did not possess an associate’s degree was a pretext for discrimination and the real reason for the City’s failure to promote Randle was her race and national origin.

Free Consultation With Alachua County Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have almost twenty years of experience representing employees suffering from discrimination in the workplace.  If you have been subjected to employment discrimination or have been discriminatorily denied a promotion, please contact our office for a free consultation with out Alachua County, Florida employment discrimination attorneys.  Our employee rights law firm takes employment discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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