Promotion Discrimination – Wrongful Failure to Promote

Promotion discrimination is a type of workplace discrimination whereby an employee is passed over for promotion for an unlawful reason, such as the person’s race, religion, sexual orientation, disability or age.

Below, our California labor and employment law attorneys address frequently asked questions about the wrongful failure to promote claims and how it may affect your case:

• 1. What is a wrongful failure to promote?
• 2. What is a protected class?
• 3. What are legitimate reasons for not promoting me?
• 4. How do I file a claim for failure to promote?
  • 4.1. How do I file my claim under FEHA?
  • 4.2. How do I file my claim under Title VII of the Civil Rights Act?
  • 4.3. What do these agencies do with my complaint?
  • 4.4. When will the agency make a decision?
  • 4.5. The agency rejected my case, does this mean it has no merit?
• 5. How do I file a civil action for failure to promote?
  • 5.1. What do I have to prove in my case?
  • 5.2. How do I prove a “causal connection” between the treatment and the protected class status?
  • 5.3. What if the employer gives legal reasons for not hiring me?
• 6. What legal remedies could I receive for wrongful failure to promote?

1. What is a wrongful failure to promote?

Promotion discrimination is prohibited

• under Title VII of the Civil Rights Act and
• under the California Fair Employment and Housing Act.

Your employer can decide whether or not to promote you, but it cannot be based on illegal reasons. When that happens, you may have a valid claim for wrongful failure to promote.

Illegal reasons not to promote you include failure to promote due to your:

• Gender
• Race, Color, or National Origin
• Ethnicity
• Religious beliefs or practices
• Physical disability
• Mental disability
• Medical condition
• Age (if over 40), or
• Pregnancy.

If you were not promoted as a result of a discriminatory reason, our employment lawyers can help you obtain financial compensation in the form of:

• Lost wages
• Lost benefits
• Damages for emotional distress and suffering, and/or
• Possible punitive damages.

2. What is a protected class?

Under federal law, like Title VII of the Civil Rights Act,¹ and under California law, such as the Fair Employment and Housing Act (FEHA),² there are certain types of employees who are protected from discrimination. California law protects more classes of persons than federal law.

Protected classes under federal law:

• Race
• Color
• Sex
• Age (40 and older)
• Religion
• National origin
• Disability
• Citizenship status
• Genetic information.

Protected classes under California law:

• Sexual orientation
• Gender identity and gender expression
• Race
• Color
• Ancestry
• National origin
• Religion
• Sex (including pregnancy, childbirth, and related medical conditions)
• Medical conditions
• AIDS/HIV
• Disability: physical or mental
• Age (40 and older)
• Genetic information
• Marital Status
• Military or Veteran status
• Political affiliations or activities
• Status as a victim of domestic violence, assault, or stalking.

Age Discrimination

Both federal and state law prohibit failure to promote on this basis of your age, specifically age 40 or older. Employers cannot refuse to promote you simply because you are “too old.”

Ageism is one of the most frequent forms of discrimination we see polluting employers’ hiring practices and threatening employee rights. Often employers are hoping their older employees will “just quit” so they can hire younger employees at lower pay.

Race, National Origin, Color, or Ancestry

California employers cannot discriminate against you due to your

• race,
• national origin,
• color, or
• ancestry.

This includes all employees, even those not typically considered to be discriminated against (such as Caucasian employees). Failure to promote on this basis is illegal.

Religion

Discrimination based on your religious beliefs or reasonable practices is illegal under California law.

Physical and Mental Disabilities

An employer may not fail to promote you because of a physical or mental disability. Employers are expected to make reasonable accommodations for persons with disabilities. If the accommodation would not be reasonable to expect of the employer, no discrimination has occurred.

Medical Conditions

An employer may not discriminate against you because of a medical condition you suffer, whether symptoms are currently happening or not.

Marital Status

Whether you are married or unmarried or to whom you are married is not a permissible reason not to promote. This includes whether you are:

• Separated
• Divorced, or
• Widowed.

Gender or Gender Identity

An employer may not discriminate against you due to your gender or gender identity. It may also relate to gender-related issues, like:

• Childbirth
• Breastfeeding
• Gender expression, or
• Pregnancy.

There are other protected classes and special circumstances may apply in each individual case. If you feel you were discriminated against and wrongfully passed over for promotion, the employment law attorneys at Shouse Law Group can help you understand if you are in a protected class.

3. What are legitimate reasons for not promoting me?

If your employer failed to promote you, it does not mean the employer did so based on your membership in a protected class. There are legitimate reasons not to promote someone.

Common permissible reasons not to promote you include:

• Failure to meet the qualifications
• Lack of educational requirements
• Not enough experience for the position
• Another candidate or co-worker was more qualified
• Poor performance record at the current job
• Failure to commit to the required work schedule, or
• Inability to perform the required tasks of the position, even with reasonable accommodation for a disability.

That said, in our experience, we have seen all of the above reasons – and others – being offered as a false pretense for the real reason of discrimination. We can often compile ample evidence of discrimination in the form of memos, emails, voicemails, video recordings, and eyewitness accounts of bosses acting in a prejudicial way. We then use this evidence as bargaining chips as we negotiate for the largest financial settlement under the law.

4. How do I file a claim for failure to promote?

Here at Shouse Law Group, we have represented countless qualified employees and candidates who fell victim to employment discrimination. In our experience, we have found that aggressive negotiation tactics yield large financial settlements for our clients while also stopping discriminatory employment practices.

A claim for wrongful failure to promote you is an action under Title VII of the Civil Rights Act or under the California Fair Employment and Housing Act (FEHA). You cannot immediately file a lawsuit against your employer, but you must first undergo an administrative process.

Our law firm has decades of combined experience with the complaint process and a long track record of successful results, and we handle the entire procedure on your behalf.

4.1. How do I file my claim under FEHA?

If you choose to file a state claim, you will do so with the California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH). You must file a complaint with the CRD asserting the discrimination and failure to promote. The complaint must set forth all of the specific requirements of the law, or it could be dismissed.

4.2. How do I file my claim under Title VII of the Civil Rights Act?

If you wish to file a suit under federal law, the complaint must first be filed with the CRD or the U.S. Equal Employment Opportunity Commission (EEOC). Filing with CRD is considered filing with the EEOC. If you wish only to file with the EEOC, you can do so. ³

4.3. What do these agencies do with my complaint?

Both agencies will investigate to determine if the allegations have merit. Each can:

• Serve subpoenas on you and your employer
• Issue written interrogatories, and
• Compel production of documents. ⁴

Employers are required to respond to complaints within 30 days, although extensions are permitted. Review of the employer’s response to the complaint can help develop the legal strategy going forward.

4.4. When will the agency make a decision?

If you and your employer cannot resolve the complaint during the process, the CRD will continue its investigation. The CRD is required to take action within 150 days of the date the complaint was filed. If it fails to do so you can pursue an action on your own. ⁵

If the CRD or EEOC finds that no violation occurred, you will be issued a right-to-sue notice. This allows you to file a civil action against the employer on your own.

If the agency finds that a violation did occur, it is required to seek to eliminate unlawful discrimination immediately. It can do this in a variety of ways, including:

• Mediation
• Conciliation
• Your case file closure
• Dispute resolution, and/or
• Civil action on your behalf.

4.5. The agency rejected my case, does this mean it has no merit?

Just because an agency rejects your case does not mean that your case has no merit. Government agencies rarely want to be the ones to have to do the work. Further, an agency could decide to reject your claim because of:

• The strength or weakness of the evidence
• The likelihood of not winning the case
• Limited agency resources to pursue your claim
• The limited relevance of the case to help settle current case law, or
• A fair settlement was offered by the employer but was refused by you.

Rejection of your discrimination claim by the agency is not the end, so never despair. We will guide you through the process of filing your complaint with the agency and will continue to represent you through a civil action.

5. How do I file a civil action for failure to promote?

After exhausting the administrative process, we can file a complaint against the company on your behalf in California or federal courts. Where to file depends largely on the facts of the case and our strategic decisions.

5.1. What do I have to prove in my case?

To establish a “prima facie” or initial case under FEHA, you must show that:

• You belong to a protected class
• You suffered an adverse employment decision, like not being promoted
• You were treated differently than similarly situated employees who are not members of a protected class, and
• There exists a sufficient causal connection between the different treatment and the protected class.

If we can prove this initial showing, the burden then shifts to the employer to provide valid and legal reasons why you were not promoted.

5.2. How do I prove a “causal connection” between the treatment and the protected class status?

Proving this can be challenging, but is far from impossible. To prove that the reason you were not promoted is that of an illegal reason, you must show that the protected traits were “substantial motivating reasons” for the decision not to promote.

Evidence to prove the causal connection could include:

• Patterns of the discriminatory conduct
• Comments made by supervisors or other workers, or
• Documents, emails, texts, or other evidence identifying discriminatory intent towards you or members of the protected class generally.

5.3. What if the employer gives legal reasons for not hiring me?

Once the employer provides a legal reason for not promoting you, the burden then shifts back to us to prove that the reason given by the employer is a “pretext” for the true reason.

We can show that the decision offered:

• Lacks any basis in fact
• Is not really the reason for the failure to promote, or
• The reasons given are insufficient to explain the decision.

The constant shifting of the burdens can seem confusing but is a part of each wrongful failure to promote case.

6. What legal remedies could I receive for wrongful failure to promote?

You are entitled to legal remedies if you suffer a wrongful failure to promote. While remedies can vary depending on the facts of your case, the legal remedies we routinely recover for our clients include:

• Money damages equal to the money you would have earned with the promotion (or the difference between your current salary and the improved salary)
• Compensation for any improved benefits you would have received
• Repayment of employment attorney fees
• Compensation for pain and suffering as a result of the failure to promote, and/or
• Possible punitive damages intended to punish you for the misconduct.

These are not necessarily the only remedies available. In every case, we seek the maximum amount allowable under the law.

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