Playing Fair

You promote fairly at your company-but you'll have to prove it when the EEOC comes calling.
Magazine Contributor
6 min read

This story appears in the April 2000 issue of Business Start-Ups magazine. Subscribe »

It's easier than you think to protect your company from discrimination lawsuits-it just takes good documentation and no, well, discrimination.

"Most employers don't discriminate. They're trying to run a business and want to promote the most productive employees," asserts attorney Jon Miller of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone in Irvine, California. The fact that an excellent employee is from a minority group, over age 50 or coping with a disability wouldn't stop you from moving that employee into a job you need done right. Even so, when you have two assistant managers who've been working for you for three years, and you promote the white man to manager and not the black woman, it can look like illegal discrimination. That's why entrepreneurs must be careful when deciding who to promote and ensure that decision is well-documented.

It's true that charges of discrimination stemming from failure to promote someone are less common than charges of discrimination when hiring or firing-but don't let your guard down. Sharona Hoffman, assistant professor of law at Case Western Reserve University School of Law in Cleveland, says that during the six years (from 1992 to 1998) she worked for the Equal Employment Opportunity Commission (EEOC) in Houston, she saw quite a few discrimination claims over failure to promote. But, adds Hoffman, "these are difficult cases to prove because it's very subjective;" employers normally assert that the person they promoted was performing better. She notes that many such cases never even go to trial, because an employer offers a cash settlement or promises that the next promotion will go to the employee complaining of discrimination.

More commonly, the claims turn up in lawsuits charging wrongful discharge: Former employees claim they were fired because of age, gender, national origin, race or another factor, and say it all started when the boss kept passing them over for promotions. Or a group of current or former employees perceive a pattern and then sue the employer for not promoting people of a particular race, nationality or other characteristic.

If It Looks Like Discrimination . . .

There's a lot you can do to make sure your practices don't appear discriminatory. "You can't stop people from suing you, but you can be in a position to defend yourself," says Eve Rachel Markewich, a litigator of employment law with New York City firm Tenzer Greenblatt LLP. "And you can run [the kind of] workplace [where] employees won't want to sue you. Make them believe that what matters is the job they do, not what they look like."

First, make sure your business has a policy of not discriminating on the basis of age, gender, disability, national origin or race, and post the policy where employees can see it. "Train managers to promote based on job requirements, not whether they're more comfortable with men," Markewich says.

You'll also need to clearly state your expectations (such as meeting deadlines) and create job descriptions for all positions. Use them in regular evaluations. Point out any weaknesses and discuss how to address them. That way, employees will know how you think they're doing and won't be surprised if passed over for a promotion. Keep a copy of your comments in the employee's personnel file so he or she knows what's in there. Hoffman notes many employers prefer to avoid conflict and hurt feelings by insisting employees are doing fine when, in reality, their performance has been marginal. "One scenario we often saw [in EEOC complaints] was the employee being told year after year he was doing fine, but he was never promoted," she says. "It begins to look like the company just never promotes minorities."

Jan Fink Call, an employment law attorney with Hoyle, Morris and Kerr LLP in Philadelphia, advises employers to list several criteria for the job the promotion will fill. Does seniority count? Are particular skills needed? Post your criteria when you announce the job opening, and refer to the criteria when considering employees for the promotion. Preparing a sheet listing the criteria and taking notes on it as you interview each candidate will help keep the process objective and give you a valuable record in case there are any questions or claims later. "If someone is just plucked from the ranks when others have no knowledge there was a job opening, they wonder why this person was chosen," Call says.

With objective criteria in place, there's no need to be nervous just because one of the candidates for the position happens to belong to a protected class. "I tell employers not to look at that," Call says. "Don't deviate from your procedures just because there's an African American or Latino in the mix." She adds that it may also help to have two or three people involved in the decision, especially when considering several candidates. In a recent court case, one member of the management team made an inappropriate comment about the candidate's age, but the judge determined that wasn't enough to show age discrimination because two others were involved in the decision.

Make sure you keep a record of why you decided to promote one person and not others. "The problem a lot of employers have in litigation is that they had a reason at the time, but didn't bother to write it down," says Miller. "You say you'll make notes tomorrow, but tomorrow never comes until the lawsuit gets filed. In litigation, it doesn't play very well to say you were too busy."

All's Fair

Suppose you've decided to promote one candidate, and the other one comes in angry over the decision. "The employer walks a delicate line," Call says. "You have to say that you believe the one you promoted was the best for the job, pointing to the criteria." She advises employers not to get into the details, but to remind the unhappy one that he or she is a valuable employee. If that employee still decides to file a complaint with the EEOC or sue for discrimination, be extra careful to continue treating the employee fairly.

"The hardest thing is to not retaliate," says Markewich. On the other hand, you should avoid treating that employee with any more deference than before or fear using normal discipline procedures. Advises Markewich, "Don't let the employee hold you hostage just because she sued you for discrimination."

The best defense against lawsuits over discrimination is not to discriminate. "Employers should be sensitive to the fact that if there's only one race in management, it looks suspicious," Hoffman says. She advises employers with good minority candidates to promote them when it's feasible, not only to avoid the appearance of discrimination, but also because it's good policy to promote the best employees.

Contact Sources

Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 2 Park Plaza, #850, Irvine, CA 92614, (949) 474-1880

Hoyle, Morris & Kerr LLP, (215) 981-5823,

Tenzer Greenblatt LLP, (212) 885-5000,


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