Can I Sue for Discrimination for Not Getting Promoted?

A failure to promote may be the basis of a lawsuit if the facts and law line up on your side. To have a valid discrimination claim against a present or past employer, you would need to show that there was an adverse employment action because of your protected characteristic.

An adverse employment action can be a termination, refusal to hire, or denial of promotion.
A protected characteristic can be sex, race, color, religion, national origin, disability, or any number of categories protected by antidiscrimination law.

In March and April 2016, two failure to promote cases were filed in the U.S. District Court for the Southern District of Indiana against Salesforce.com Inc. Tanya Blackwell and Maria Boyd, Salesforce employees in Indianapolis, sued the software company, claiming they were denied promotions on multiple occasions because of their race and gender, according to the Indianapolis Business Journal.

Blackwell’s and Boyd’s civil lawsuits follow complaints they had filed with the Equal Employment Opportunity Commission.

Boyd alleged that she was discriminated against because of her sex and race.
Blackwell claimed that Salesforce discriminated against her due to her age (46), sex, race, and color and that she was retaliated against because of her prior complaint of race and gender discrimination.

Blackwell, who is African American, and Boyd, who describes herself as Puerto Rican, seek damages for “wages, benefits, compensation, and other monetary loss suffered,” although the complaints do not spell out exact numbers. Blackwell is also seeking reinstatement with the company and a promotion, while Boyd has asked the court to order the defendant to promote her.

Employees’ Complaints Allege Unequal Treatment in Promotions and Pay

Boyd asserted the following facts in her complaint:

She was hired by the defendant in 2008 as a contract revenue specialist.
Boyd was promoted to a manager position in 2010 and worked as a global manager, credit and collections, starting in 2013.
She was recommended for promotion in September 2014 by her supervisor, Blackwell, who was working as a director, credit and collections.
Boyd was not promoted. Blackwell asked why and was told it was too late to promote her as promotions are done in November and May, though Blackwell’s recommendation was sent in October.
Males and non-Latinas were promoted though their paperwork was sent at the same time or later.
Blackwell was told that Boyd’s application “fell through the cracks” because it was not signed by a senior vice president. Boyd contended that this signature was not needed to obtain a promotion.
Salesforce told Blackwell that Boyd would be promoted in May 2015, but that did not happen.
Boyd claimed that Salesforce had “a disproportionate number of males and Caucasians across its upper levels of management.”

Blackwell’s complaint made similar allegations:

Blackwell has worked for Salesforce and a predecessor company since September 2012 as a director of credit and collections.
She was paid less than similarly situated younger men and non-African Americans performing similar jobs.
She reported to another director, while male, non-African American directors reported to a senior vice president.
Younger white male employees have been disproportionately promoted over females of color.
In April 2015, Blackwell complained to Salesforce’s human resources department about race-based discrimination, including Boyd’s inability to be promoted and her own perception about how she was treated.
Five days later, Salesforce informed Blackwell that her position was being eliminated.

The company may claim that the lawsuits concern how things may have been done in the past but not any longer. Earlier this year, Salesforce CEO Marc Benioff, a supposed proponent of equal pay and rights for women and minorities, was quoted in a Stanford Law School blog as saying the following:

One day last year, two female executives in my company came to me and said we might be paying women less than men. This was a complete surprise to me. It didn’t occur to me that inequality could creep into our company culture at Salesforce. We then looked at the salary of every employee in the company, and it turned out we did have a pay gap…. Now, we are spending $3 million on closing the gap so that women and men are paid equally at Salesforce, and we’ve instilled equality as one of the core values of our company…. [W]e will never solve the issue of pay inequality if CEOs and business leaders continue to turn a blind eye to what’s happening right in their own organizations. Businesses are the greatest platforms for change in the world—and business leaders, as well as government leaders, must set an example when it comes to equal pay for equal work.

Summing It Up

It is against federal law for an employer to make decisions based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information (or related stereotypes and assumptions) concerning promotions.

A plaintiff may recover damages if he or she proves that the employer promoted another employee instead of the plaintiff because of the plaintiff’s protected characteristics.

This can be done through direct evidence of discriminatory intent (through words spoken or written) or through the burden-shifting framework established for cases based on circumstantial evidence where the plaintiff needs to rebut the employer’s given reason for its choice when making the promotion and show that the reason is just a cover for discrimination.
Frequently in promotion cases, the employer’s reason for the failure to promote is that it chose someone it thought was better qualified or a better fit for the promotion (though in Boyd’s case, Salesforce may claim a technical problem with an application or a missed deadline). Employers are given a fair amount of leeway when making these decisions, and courts generally avoid cases where it is a close call as to whether the chosen candidate was the best person for the job.
A plaintiff may establish that the employer’s decision was not legitimate by showing that he or she was “clearly better qualified” than the chosen candidate because the plaintiff’s qualifications were so much better that no reasonable employer would have made the same decision.
Because employers are given wide latitude when considering years of service or general experience and may favor specific qualifications or abilities, proving a failure to promote case, depending on the facts, can be difficult for a plaintiff.

If you believe that you have been passed over for a promotion in violation of the law, contact our office so we can talk about what happened, how the law may apply, and what your best options are for protecting your rights.

Federal law can cover promotion decisions

Title VII makes it unlawful for a covered employer to discriminate in compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. Promotion decisions can be part of that analysis. The statute also addresses employer practices that limit, segregate, or classify employees or applicants in a way that deprives them of employment opportunities or adversely affects their status because of a protected characteristic.

Other federal laws can address age, disability, genetic information, pay, military service, or other subjects under different rules. The label “discrimination” does not answer which law may apply. The protected basis, employer coverage, job requirements, and decision process should be assessed carefully.

A protected characteristic and an adverse decision are not the whole analysis

Federal law does not prohibit every unfair or mistaken promotion decision. A selection process may involve subjective judgment, legitimate disputes about qualifications, or business reasons that require further factual review. Conversely, a stated reason can be relevant without being the final answer. The law, evidence, and procedure all matter.

Title VII’s current statutory text is available at 42 U.S.C. § 2000e-2. The EEOC’s overview of prohibited employment policies and practices also identifies promotion among the employment areas covered by federal anti-discrimination laws.

Retaliation can be a separate issue

Title VII may prohibit retaliation when a person opposes conduct made unlawful by Title VII or participates in a Title VII process. The protected activity, the decision-maker’s knowledge, the selection process, the reasons provided, and other facts may be relevant.

This article is general information, not legal advice. Employment law changes, and your situation may differ. For advice about your own case, talk to an attorney.

Can I Sue for Discrimination for Not Getting Promoted?