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Helping Employees Survive
Employment Discrimination
The Employee's Voice And Advocate

Inverness, FL Discrimination Victims’ Lawyers Serving Central Florida

For more than two decades, our Citrus County, Florida employment discrimination lawyers have been fighting for employees against discriminatory employment practices. In Furnco Const. Corp. v. Waters, 438 U.S. 567 (1978), the U.S. Supreme Court explained that “it is clear beyond cavil that the obligation imposed” by the federal anti-discrimination laws is “to provide equal employment opportunity for each [promotion] candidate.” Although the federal anti-discrimination laws seek to assure equality of promotion opportunities and eliminate discriminatory promotion decisions, employees continue to face substantial obstacles in their efforts to obtain promotion. Indeed, employees not only have to surmount discrimination when seeking career advancement, they also most overcome the employer-friendly approach adopted by many federal courts to the federal anti-discrimination laws.

Fighting For Employee Rights

For years, many federal courts have engaged in a frontal assault against employee rights by adopting overly restrictive interpretations of the federal anti-discrimination laws. These courts, such as the U.S. Seventh Circuit Court of Appeals in Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), declare that they do “not act as super personnel department that second-guesses employers’ business judgments.” Abdicating their role as an enforcer of the federal anti-discrimination laws, these courts, like the Seventh Circuit in Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988), further declare that “no matter how medieval an [employer’s] practices, no mater how high-handed its decisional process, no matter how mistaken the [employer’s] managers, [the federal anti-discrimination laws] do[ ] not interfere.” These courts, as observed by Justice Rosenbaum in his dissenting opinion in Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019), “drop[ ] the anvil on the employer’s side” when interpreting the federal anti-discrimination laws.

The widespread misconception underlying these approaches to the federal anti-discrimination laws is that, since employment decisions allegedly are rarely motivated by discriminatory animus, employment discrimination purportedly is not a serious problem. These approaches to the federal anti-discrimination laws also disingenuously conflate scrutinizing an employer’s employment decision with “second-guessing” that decision. As observed by the U.S. Second Circuit Court of Appeals in Stern v. Trustees of Columbia Univ., 131 F.3d 305 (2d Cir. 1996), although courts do not “second-guess” an employer’s employment decision, the federal anti-discrimination laws compel courts to subject “the reasons” for an employer’s employment decision “to strict scrutiny” in order to ensure that the decision was not the result of discriminatory animus.

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment discrimination lawyers are dedicated to vindicating the rights of employees who have been denied career advancement because of discriminatory promotion practices.

Laws Prohibiting Discrimination In Promotion

There is a broad array of anti-discrimination laws which make it unlawful for employers to fail or refuse to promote employees for a discriminatory reason. These statutes provide employees with a cause of action when they are denied promotion for a discriminatory reason. The anti-discrimination laws which make discrimination in promotion decisions an unlawful employment practice include:

  • * Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, protects employees from discrimination on the basis of race, color, national origin, sex, and religion. Under Title VII, failing or refusing to promote an employee because of his or her race, color, national origin, sex, or religion is an unlawful employment practice.
  • * The Pregnancy Discrimination Act (PDA), which is federal law, prohibits employers from discriminating against employees on the basis of pregnancy. Under the PDA, an employer’s failure or refusal to promote an employee because she is pregnant or might become pregnant is an illegal employment practice.
  • * The Americans with Disabilities Act (ADA), which is federal law, protects employees from discrimination on the basis of disability. Under the ADA, employers are forbidden from failing or refusing to promote disabled employees because of their disability.
  • * The Age Discrimination in Employment Act (ADEA), which is federal law, forbids employers from discriminating against employees on the basis of age. Under the ADEA, it is an unlawful employment practice to fail or refuse to promote employees because of their age.
  • * The Florida Civil Rights Act (FCRA), which is Florida law, protects employees from discrimination on the basis of race, color, national origin, sex, pregnancy, religion, disability, age, and marital status. Under the FCRA, employers are forbidden from failing or refusing to promote an employee on the basis of race, color, national origin, sex, pregnancy, religion, disability, age, or marital status.

Discriminatory Failure To Promote Myth

Many employees denied promotion mistakenly believe that an employer must tell them they were not promoted because of their race, color, national origin, sex, pregnancy, religion, disability, or age in order to have legal grounds for bringing a discriminatory failure to promote case. In other words, some employees believe that unless an employer gives them “smoking gun” evidence by admitting to a discriminatory motive in a promotion decision, there is no basis for bringing a discriminatory failure to promote lawsuit. This belief, however, is a myth.

As the U.S. Seventh Circuit Court of Appeals in Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999) explained, “it would cripple enforcement of the employment discrimination laws” to insist that evidence in an employment discrimination case “take the form of an employer’s statement to the effect that ‘I’m [not promoting] you because you’re in a protected group.’ ” As observed by the U.S. Second Circuit Court of Appeals in Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991), “an employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to discriminatory intent.”

Indeed, “smoking gun” evidence attesting to discriminatory intent almost never exists in today’s sophisticated employment world. Instead, as the U.S. District Court for the Western District of New York in Melnyk v. Adria Laboratories, 799 F.Supp. 301 (W.D. N.Y. 1992) pointed out, “employment discrimination is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence.” Thus, as the U.S. First Circuit Court of Appeals explained in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), “ ‘smoking gun’ evidence is [ ] not required to prove discrimination.”

Moreover, as observed by the U.S. D.C. Circuit Court of Appeals in Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982), “employees and applicants for employment have great informational disadvantages” when attempting to prove discrimination in employment decisions because “they cannot reach into the minds of the decision-makers, and therefore can gather only circumstantial evidence of discriminatory motives.” Indeed, as the U.S. Supreme Court in United States Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711 (1983) pointed out, “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental process.” Because an employer will almost never admit to a discriminatory motive or leave a paper trial illuminating a discriminatory motive when denying an employee a promotion, discriminatory failure to promote cases almost always must be proven by circumstantial evidence.

Proving A Discriminatory Failure To Promote

To establish a prima facie case of discrimination in a promotional decision, as determined by the U.S. Eleventh Circuit Court of Appeals in Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998), an employee must prove that: (1) he or she is a member of a protected class based on his or her race, color, national origin, sex, pregnancy, religion, disability, or age; (2) he or she applied for and was qualified for promotion; (3) he or she was not given the promotion; and (4) the position went to a person who is not a member of his or her protected class or the employer continued to attempt to fill the position after rejecting him or her for the position.

Even when the position is filled by a person who is a member of the rejected employee’s protected class, courts, such as the U.S. Fourth Circuit Court of Appeals in E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001), have determined that a rejected promotion candidate can still establish a prima facie case of a discriminatory failure to promote by showing that he or she: (1) is a member of a protected class based on his or her race, color, national origin, sex, pregnancy, religion, disability, or age; (2) applied for and was qualified for a promotion; (3) was not given the promotion; and (4) was not promoted under circumstances which give rise to an inference of unlawful discrimination.

As observed by the U.S. District Court for the Western District of New York in Kearney v. Pyramid Mgmt. Group, Inc., 2000 WL 744000 (W.D. N.Y. June 5, 2000), in determining whether the employer’s promotion decision occurred under circumstances which give rise to an inference of unlawful discrimination, courts look to “factors such as the employer’s continued solicitation of applicants from people with qualifications similar to those of [the rejected promotion candidate], [discriminatory] language used to criticize the [rejected promotion candidate], disparaging comments about people in the [rejected promotion candidate’s] protected class, more favorable treatment of other employees not in the protected group, and the circumstances” surrounding the employer’s decision not to promote the rejected promotion candidate.

As the Second Circuit Court of Appeals observed in Kerzer v. Kingly Mfg., 156 F.3d 396 (2d Cir. 1998), a valid prima facie case creates “a presumption that the employer unlawfully discriminated against the employee.” Thus, as explained by the U.S. Sixth Circuit Court of Appeals in Rose v. Nat’l Cash Register Corp., 703 F.2d 225 (6th Cir. 1983), “to say that an [employee] has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury.” Once a promotion candidate establishes a prima facie case of discrimination, the employer must articulate a legitimate, non-discriminatory reason for its promotion decision. If the employer demonstrates that it had a legitimate, non-discriminatory reason, the promotion candidate must show that the employer’s proffered reason for the promotion decision is actually a pretext for discrimination. The promotion candidate may prove pretext by showing that a discriminatory reason more likely motivated the promotion decision or that the employer’s proffered reason for the promotion decision is unworthy of belief.

Qualification For Promotion

To demonstrate qualification for promotion to the position in question for purposes of establishing a prima facie case of discrimination, an employee is only required to show that he or she satisfied the employer’s minimum qualifications for the position. In other words, an employee must only show that he or she was minimally qualified for the job. Thus, as explained by the U.S. Eleventh Circuit Court of Appeals in Carter v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir. 1998), an employee seeking promotion is not required to establish that he or she possessed all of the qualities that the employer might prefer, but did not absolutely require, a promotion candidate to have.

In determining whether a promotion candidate met the minimum qualifications for the job, courts focus on the employee’s skills and background in relation to the employer’s objective qualifications for the position, including any education, experience, work performance, or training requirements identified by the employer for the position. In some circumstances, as determined by the U.S. District Court for the Northern District of Alabama in Hawthorne v. Sears Termite & Pest Control, Inc., 309 F.Supp.2d 1318 (N.D. Ala. 2003), an employer’s consideration of the employee for the position in question “leads to the inference” that the employer believed the employee seeking the position “had the minimal qualifications for the job.”

Employers often argue that in order to establish a prima faice case of discrimination in the promotion context, an employee must demonstrate that he or she was equally or more qualified than the person who ultimately received the job. Some federal court opinions indicate that such is a requirement of a prima facie case on promotion claims. In Walker v. Mortham, 158 F.3d 1777 (11th Cir. 1998), however, the U.S. Eleventh Circuit Court of Appeals squarely held that an employee seeking to establish a prima facie case of discriminatory failure to promote is not required to show, as part of a prima facie case, that his or her qualifications are equal or superior to those of the successful candidate.

Application Not Always Required

If an employer uses formal procedures to announce positions and identify candidates, an employee claiming a discriminatory failure to promote generally must show that he or she actually applied for the position in question to establish a prima facie case of discrimination. However, an employee cannot be expected to apply for a particular position that is currently filled, nor, in the absence of posting, to have advance knowledge that a particular position is soon to become available. Under some circumstances, therefore, an employee is not required to show that he or she applied for a specific promotion position.

When an employer maintains an informal selection process, such as where promotion positions are not posted or announced or formal applications for promotion are not accepted, an employee can satisfy the application requirement by showing that the position was available and the employer had some reason to consider him or her for the position. Employees can establish that the employer had some reason to consider them for promotion through evidence they told management or the decision-maker of their desire for the promotion—whether promotion generally or promotion to the position in question.

These principles are illustrated in Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261 (M.D. Ala. 1993). In that Title VII case, the employer argued that the employee claiming a race-based discriminatory failure to promote could not establish a prima facie case because she failed to apply for the job. In rejecting this argument, the U.S. District Court for the Middle District of Alabama found that the application requirement was satisfied because the employer had no formal posting system and the job itself was never posted. Under such circumstances, the court reasoned, the employer “had a duty to consider all of those who might have been interested” in the position and “a duty to consider” the employee denied promotion because “she had expressed an interest in the job.”

Discriminatory Procedural Irregularities

In the discriminatory failure to promote context, employers often violate their own personnel policies when selecting the successful candidate. An employer’s failure to follow its own personnel policies in the promotion process is evidence of a discriminatory promotion decision. As stated by the U.S. Eleventh Circuit Court of Appeals in Carter v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir. 1998), it is “suspicious where it is alleged that established rules were bent or broken” to give the selected candidate “an edge” in the promotion process.

These principles are illustrated in the decision by the U.S. Fourth Circuit Court of Appeals in Alvardo v. Bd. of Trustees of Montgomery College, 928 F.2d 118 (4th Cir. 1991). In that Title VII case, an employee claimed that he was denied promotion because of his race. The employer maintained a policy requiring employees seeking promotion to submit an application. The rejected employee submitted an application, but the selected candidate did not. The employer also maintained a policy of filling vacant positions with the employee who held the job on a temporary basis. The rejected employee had held the position in question on a temporary basis and thus should have been promoted to fill the vacancy under the employer’s own policy. Based on this evidence, the Fourth Circuit concluded that “it was more likely than not that a discriminatory reason motivated” the promotion decision because the employer violated its own personnel policies in selecting the successful candidate.

These principles are also illustrated in the decision by U.S. Eleventh Circuit Court of Appeals in Bass v. Bd. of County Comm’rs, 256 F.3d 1095 (11th Cir. 2001), where the court, in the context of an employer’s violation of its own personnel policy, applied the principle that promoting a less qualified candidate is circumstantial evidence of discrimination. In that Title VII case, an employee claimed that he was the victim of a race-based promotion decision where the candidate selected did not even meet the employer’s minimum qualifications for the position. Noting that the employer’s violation of its own promotion criteria “may be probative of whether the employer’s proffered reason” for not promoting the rejected candidate was a pretext for discrimination, the Eleventh Circuit ruled “the fact that the [employer] promoted an [employee] who was unqualified under [the employer’s] own criteria over [the rejected candidate] supports an inference of discrimination” because it reflects the employer based the promotion decision on a discriminatory motive rather than its own personnel policy.

Preference For Present Employees

Many employers maintain a policy providing that present employees will be preferred over outside applicants. In promulgating such a policy, employers may state the preference for present employees over outside applicants is absolute or merely a factor they will consider when making employment decisions. Regardless of whether the policy is identified by the employer as an absolute preference or merely a factor to be considered, an employer’s failure to honor its policy can be evidence of a discriminatory promotion decision.

The decision by the U.S. Eleventh Circuit Court of Appeals in Clark v. Huntsville City Bd. of Educ., 717 F.2d 525 (11th Cir. 1983) demonstrates than an employer’s failure to follow its own policy regarding a preference for present employees over outside applicants can reflect a discriminatory motive. In that case, a present employee claimed that he was denied promotion because of his race in violation of Title VII when the employer selected an outside candidate for the position. The employer maintained that the selected outside candidate was more qualified than the rejected present employee. However, the employer had a policy stating that a qualified present employee would be given preference over outside applicants. The Eleventh Circuit found that the employer’s policy could be used to “cast doubt on the truth of the [employer’s] reliance on the outsider’s greater qualifications” and establish that the rejected present employee’s race was the real reason for the employment decision.

Discriminatory Change In Qualifications

In the discriminatory failure to promote context, employers sometimes change the qualifications for the position in order to accommodate the preferred candidate’s inability to satisfy those qualifications. For example, an employer may change the education, experience, or performance qualifications required for the position in order to tailor the requisite qualifications with the background of the preferred candidate. An employer’s changing of the qualifications required for the position to justify the selection of the preferred candidate is evidence of a discriminatory employment decision.

The decision by the U.S. Sixth Circuit Court of Appeals in Farber v. Massillon Board of Education, 917 F.2d 1391 (6th Cir. 1990) shows that a discriminatory motive often lurks beneath an employer’s decision to change the qualifications for the position. In that discriminatory failure to promote case, the board of education’s minimum qualification requirement to be a school principal, as set forth in the official handbook, was ten years of prior teaching experience. The male candidate who was selected for the principal position did not have ten years of prior teaching experience. When the board of education posted a notice that the principal position was vacant, the ten-year prior teaching experience requirement was not listed in the notice of vacancy. In affirming the jury’s finding that a female candidate for the principal position was denied promotion because of her gender in violation of Title VII, the Sixth Circuit determined that this reduction of the minimum qualification requirement tailored to allow the male candidate to be deemed “qualified” was evidence of a gender-based discriminatory promotion decision.

Employee Promoted Was Preselected

In the discriminatory failure to promote context, employers sometimes preselect an employee for promotion to the position in question before informing employees that the position was open, taking applications, or conducting interviews. In Goostree v. State of Tenn., 796 F.2d 854 (6th Cir. 1986), the U.S. Sixth Circuit Court of Appeals determined that “evidence of preselection operates to discredit the employer’s proffered explanation for its employment decision.” Thus, evidence showing that the successful candidate was preselected casts serious doubt on the credibility and legitimacy of the employer’s proffered reason for its promotion decision.

The decision by the U.S. Eighth Circuit Court of Appeals in Coble v. Hot Springs School District No. 6, 682 F.2d 721 (8th Cir. 1982) illustrates that preselection of the successful candidate can be used to show that an employer’s articulated non-discriminatory reason for its promotion decision was a pretext for discrimination. In that case, an elementary school counselor claimed that she was denied promotion to the position of junior high school counselor because of her sex in violation of Title VII. The school district contended that the male teacher promoted to the position was selected because he had junior high school experience and the female employee denied promotion did not. However, the appellate court found that the evidence showed the job requirements for the counselor position were drafted specifically to fit the male teacher and the male teacher was in fact preselected for the position. The evidence establishing that the male teacher was preselected for the position, the court of appeals determined, “effectively discredited the school district’s proffered explanation that [the male teacher] was selected because he had junior high school experience.”

Failure To Interview Promotion Candidate

In some failure to promote cases, employers maintain that the candidate selected was more qualified for the position based on his or her interview performance. When an employer claims that a promotion decision was based on interview results, courts have determined that the promotion decision cannot be viewed in isolation, without consideration of the effects of differential treatment at the interview stage. In scrutinizing the interview process for discriminatory bias, courts have ruled that an employer’s refusal to give an interview to a qualified promotion candidate can constitute circumstantial evidence of a discriminatory motive in the promotion decision-making process.

In Kline v. Tennessee Valley Authority, 128 F.3d 337 (6th Cir. 1997), the U.S. Sixth Circuit Court of Appeals addressed the significance of an employer’s failure to interview a qualified candidate for promotion. In that case, an employee claimed that the employer denied him promotion because of his race in violation of Title VII. Despite his qualifications for promotion, the employer never interviewed him for the position. The candidate selected was interviewed for the position and her performance during the interview is what secured the position for her. Thus, as the court of appeals observed, the interview enabled the candidate selected “to demonstrate and strengthen her credentials for the position.” The appellate court found that the employee denied promotion should have been given the same opportunity to interview as the candidate selected. The employer’s failure to interview the rejected promotion candidate, the Sixth Circuit concluded, was evidence of a discriminatory race-based promotion decision.

Employee Told Ineligible For Promotion

In the discriminatory failure to promote context, employers sometimes tell promotion candidates they are ineligible for promotion to a particular position because they lack the requisite qualifications. Remarkably, some federal courts invoke their judicial mantra of declining to “second-guess” an employer’s employment decision and rubber-stamp a discriminatory promotion process by declaring that employers’ are entitled to set their own qualifications criteria and decide which employees are eligible for promotion. In other words, these courts reason that if an employer concludes that an employee was ineligible for promotion under its qualifications criteria, they will not “second-guess” the employer’s business judgment and the discrimination inquiry is over. However, because many federal courts recognize their role as an enforcer of the federal anti-discrimination laws requires them to subject the reasons for an employer’s employment decision to strict scrutiny, an employer’s assertion that an employee was ineligible for promotion to a particular position under its qualifications criteria does not always put an end to the discrimination inquiry.

In Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000), a female employee claimed that she was denied promotion because of her gender in violation of Title VII. The employer argued that she was ineligible for promotion to the position because she lacked the requisite four years of experience required for the position. In reversing the trial court’s dismissal of her discriminatory failure to promote claim, the U.S. Second Circuit Court of Appeals pointed out that the four-year experience requirement “had not been applied uniformly” because two male employees held the position despite not having the requisite experience. Because the employer enforced its qualification requirement against a woman seeking the position but not against the men holding the position, the appellate court found that the employer’s claim that the female employee was ineligible for promotion because she lacked the requisite experience was not a “genuine explanation for the [employer’s] rejection of her.” Because the employer’s proffered explanation was unworthy of credence, the Second Circuit concluded, a reasonable jury could find that she was not promoted because of her gender in violation of Title VII.

Selected Candidate Less Qualified

As pointed out by the U.S. Eleventh Circuit Court of Appeals in Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001), the question in a discriminatory failure to promote case is “not whether the employer selected the most qualified candidate, but only whether it selected the candidate based on an unlawful motive.” However, courts have consistently ruled that evidence showing the selected candidate was less qualified than the rejected employee constitutes circumstantial evidence of a discriminatory motive. In other words, as observed by the U.S. Tenth Circuit Court of Appeals in Martinez v. Wyoming, 218 F.3d 1133 (10th Cir. 2000), when an employer contends that the rejected employee “was not as qualified as the successful candidate,” discrimination “can be inferred from evidence that the [rejected employee] was in fact more qualified than” the selected candidate.

In harmony with the employer-friendly approach adopted by many federal courts to the federal anti-discrimination laws, some federal courts, like the U.S. Eleventh Circuit Court of Appeals in Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir. 2000), ruled that showing the employee denied promotion was more qualified than the candidate selected was not evidence of a discriminatory failure to promote unless the disparities in qualifications “are so apparent as to virtually jump off the page and slap you in the face.” In demanding that an employer reveal its discriminatory motive by “slapping” the court “in the face,” the Eleventh Circuit reasoned that “its role is to prevent unlawful hiring practices, not to act as a super personnel department that second-guesses employer’s business judgments.”

In paying lip service to its role in preventing discriminatory hiring and promotion practices, the Lee court ignored binding U.S. Supreme Court precedent. In Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court explained that “[t]he fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose [the employer] to liability [under the federal anti-discrimination laws], although this may be probative of whether the employer’s reasons are pretexts for discrimination.” In other words, the Supreme Court explained, showing that an employer promoted a less qualified candidate is evidence that the employer’s proffered explanation for the promotion decision is a pretext for discrimination.

In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), the U.S. Supreme Court overruled the Eleventh Circuit’s standard that “the disparity qualifications [be] so apparent as virtually to jump off the page and slap you in the face.” In overturning the Eleventh Circuit’s “slap you in the face” standard, the Supreme Court explained that under its decisions, disparities in qualifications “may suffice, at least in some circumstances, to show” a discriminatory motive. Indeed, the Ash Court pointed to its decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) where the Court ruled that an employee “might seek to demonstrate that the [employer’s] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position.” The Ash Court also explained that “[t]he visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an explanation for inferring [discrimination] from superior qualifications.” Having extinguished the Eleventh Circuit’s “slap you in the face” standard, the Ash Court stated that employees are only required to establish that they were “clearly better qualified” than the candidate selected when attempting to prove a discriminatory failure to promote claim through superior qualifications.

Employer’s Reliance On Subjective Criteria

Although employers cannot rely upon subjective criteria at the prima facie stage of a discriminatory failure to promote case to establish that an employee denied promotion was unqualified for the position, courts have consistently ruled that employers are allowed to rely on subjective factors in making promotion decisions. An employer relies on subjective evaluations of promotion candidates to justify a promotion decision when it maintains that traits such as “common sense,” “good judgment,” “originality,” “ambition,” “loyalty,” “personality,” “interpersonal skills,” or “enthusiasm” factored into the challenged promotion decision.

Although employers are allowed to base promotion decisions on subjective factors, courts have also determined, as pointed out by the U.S. Tenth Circuit Court of Appeals in Danville v. Regional Lab Corp., 292 F.3d 1246 (10th Cir. 2002), that “discrimination is more likely where subjective rather than objective criteria are used to reject a candidate’s application.” Thus, as noted by the U.S. Eleventh Circuit Court of Appeals in Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985), reliance on subjective criteria as a basis for promotion decisions “provides a ready mechanism for [ ] discrimination.” Indeed, as the U.S. D.C. Circuit Court of Appeals observed in Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012), courts “have repeatedly expressed concern about the ease with which heavy reliance on subjective criteria may be used to ‘mask’ or ‘camouflage’ discrimination.”

Consequently, as the U.S. Eighth Circuit Court of Appeals observed in Royal v. Missouri Highway & Trans. Comm’n, 655 F.2d 159 (8th Cir. 1981), “[a]lthough not illegal per se, subjective promotion procedures are to be closely scrutinized because of their susceptibility to discriminatory abuse.” As part of the strict scrutiny given to an employer’s use of subjective factors in making a promotion decision, courts have ruled, such as the U.S. Seventh Circuit Court of Appeals in Perfetti v. First Nat. Bank of Chicago, 950 F.2d 449 (7th Cir. 1991), that, “under many circumstances, subjective factors may be insufficient to justify the employer’s [promotion] decision.” In other words, the more subjective an employer’s proffered reason for its promotion decision, the less likely a court will find that the proffered reason constitutes a legitimate, non-discriminatory reason.

Failure To Promote & Discriminatory Comments

Although not required to prove a discriminatory failure to promote case because such evidence is rarely available, discriminatory remarks by employees involved in the promotion decision-making process are the most compelling evidence of a discriminatory failure to promote. In most cases, a discriminatory comment by an employee involved in the promotion decision-making process is sufficient, standing alone, to establish that the challenged promotion decision was based on unlawful discrimination and permit a jury to return a verdict for the rejected employee.

For purposes of illustration, set forth below are examples of discriminatory remarks made by employees involved in the promotion decision-making process taken from actual discriminatory failure to promote cases. The employee claiming a discriminatory failure to promote used the discriminatory comments to prove that he or she was denied promotion on the basis of race, color, national origin, sex, pregnancy, religion, disability, or age.

  • * Manager making promotion decision remarked, “he would always choose a man over a woman or minority for management positions.”
  • * Member of promotion selection committee stated that the promotion candidate, “because of his age, might not be around very long.”
  • * Employee in charge of hiring and promotion referred to African-American employees using racial slurs and expressed a generalized belief in their unwillingness to work.
  • * Decision-maker told other managers to “hire white employees.”
  • * Company officials with promotion authority stated “they wanted a younger person” in the position.
  • * Employee making promotion decision said the company was “going to weed out the old ones.”
  • * Decision-maker told unsuccessful promotion candidate that “one of the reasons he was not considered for promotion” was because he “is Hispanic.”
  • * Employee involved in decision-making process told rejected promotion candidate that he was not promoted because he was “getting up in years” and “should retire.”
  • * Manager making promotion decision stated that “the only way to handle sexual harassment problems is not to promote women.”
  • * Decision-maker remarked that promotion candidate “might get pregnant and want to take family leave.”
  • * Human Resources Director told promotion candidate that senior executives “refused to even consider an American candidate” for the position.
  • * Promotion candidate was asked during her interview “how she would deal with the possibility that no one would work for her since she is a black women.”
  • * Member of board of directors told employees that the board wanted a president in the “45-50 year old range.”

Protection Against Retaliation

Title VII, the PDA, the ADA, the ADEA, and the FCRA all contain anti-retaliation provisions which protect employees from retaliation for opposing an employer’s discriminatory employment practices. Under these anti-discrimination statutes, employees are protected from retaliation when they complain about a perceived discriminatory promotion decision or perceived discriminatory promotion practices. To be protected against retaliation under these anti-discrimination laws, employees do not have to prove that they were denied promotion based on a discriminatory reason. Instead, employees only have to show that they had a good faith, reasonable belief that they were denied promotion based on a discriminatory reason. In other words, employees are protected from retaliation even if they are wrong about whether the failure to promote them constituted an actual violation of the federal or Florida anti-discrimination laws.

Inverness, FL Lawyers For Discrimination Victims

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment discrimination attorneys have more than twenty years of experience representing employment discrimination victims. If you have been denied promotion for a discriminatory reason or have questions about your rights as an employment discrimination victim, please contact our office for a free consultation with our Inverness, Florida employment discrimination lawyers. You will received personalized and individual attention from our employment discrimination attorneys. Our employees’ rights law firm takes employment discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Citrus County, Florida employment discrimination lawyers are ready to take your case and fight for your employee rights.

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