How to promote without bias – employee promotion guidelines to avoid lawsuits

Thom K. Cope

These guidelines can help you avoid costly, disruptive lawsuits by employees alleging bias in promotions.

Employers are generally aware of federal laws prohibiting discrimination in hiring and firing, but they often do not realize that similar considerations apply to promotions.

Basically, it is as illegal to apply different standards for promotion to different members of your work force as it is to apply them to hiring. You may not use subjective standards that have a disparate impact on protected groups in either case.

Under federal law, protected groups are defined in terms of race, national origin, sex, age, handicap (with disabled veterans a separate category), and military service in the Vietnam era. All criteria that you use in deciding who is to receive the promotion must be free of bias toward any and all workers who fall into any of those divisions.

One set of guidelines with which you should be familiar was handed down in a decision by the U.S. Circuit Court of Appeals for the 5th District. In it, the court held that these practices were unacceptable in selecting individuals for promotion:

* A foreman’s recommendation was the key to the promotion.

* Foremen were not given any written instructions pertaining to qualifications necessary for promotion.

* Standards were vague and subjective.

* Hourly employees were not notified of promotion opportunities or of the qualifications necessary to qualify for the higher position.

* There were no safeguards established by the company to avoid discriminatory practice.

Employers must be constantly on guard to be sure that promotion policies that appear to be neutral on paper actually avoid any discrimination when put into practice.

Here are positive steps that can be taken to avoid costly and disruptive lawsuits by employees who allege discrimination after having been denied promotion:

Provide opportunities through a job-bidding procedure or during a performance evaluation for employees to declare their interest in specific promotion opportunities. Notify your employees that they are expected to identify a higher position in which they are interested and that a general statement that they would someday like to have a better job is not sufficient.

Conduct performance evaluations on all employees on the basis of written specifications and standards related to the job. The appraisal should also be in writing. Schedule meetings with individual employees so they can review and sign their evaluations. (If an employee refuses to sign an evaluation, have a management representative witness that it was presented to the employee and have the witness sign a statement to that effect.) Remember: The performance appraisal the supervisor fills out today can be the different between winning and losing a charge of discrimination or lawsuit tomorrow.

Let employees know what is expected of them in terms of job performance.

Give employees a chance to improve once they are put on notice that performance is below par.

Maintain records of promotions according to protected groups.

Train supervisors to keep a diary on employees’ work performance and behavior. This can assure that employees are not measured on the basis of most recent actions, either good or bad, that the supervisor remembers.

Maintain accurate logs of attendance and tardiness.

Develop a system to alert employees to promotion opportunities as well as to give them an opportunity to state their interest in openings of which they become aware.

There are also some actions that you should avoid in selecting employees for promotion. Most important, you should not:

* Base promotion decisions exclusively on the supervisor’s visual observations and comments without reference to objective documented factors.

* Make decisions without giving employees an opportunity to express interest.

* Summarily dismiss an employee’s interest in a promotion opportunity.

* Tell employees that they would not be considered because of such generalizations as “It’s a man’s job” or that they would not like the environment of the new job because “It’s male” or “It’s white.”

* Use educational levels as criteria for promotion unless specific educational requirements have been professionally certified as related to the job.

* Maintain the status quo if statistics reflect underutilization of minorities and females at higher levels.

* Make promotional decisions without input from employees on their particular interests.

* Evaluate on such subjective measures as attitude.

* Allow one person to make promotion decisions.

* Impose barriers not related to the job, such as depriving a person of seniority when promoted from one department or plant to another. (It is permissible, however, to require specified periods in company employment or in a current position as qualifications for being considered for promotion.)

Provided there are no discriminatory elements involved, an employer may establish preferences for considering candidates for promotion on the basis of documented, objective criteria. For example, a preferential listing might apply in this order: to employees in the work group where the opening exists; in the department where the opening exists; in related occupation groups outside that department; and to those in any department whose training, experience, education, and seniority would seem to warrant whatever expenditures may be required to qualify them for a higher position.

Where qualifications of two or more applicants are relatively equal, seniority can be a major consideration in the selection decision.

If damages are awarded against you on the grounds that you discriminated in making a promotion, they could take the form of “front pay,” which anticipates an eventual promotion. In such cases, a court has determined that you should have promoted the complainant, but it will not order you to terminate or demote the person who received the promotion. The court will, however, require you to pay the complainant the salary that would have been received in the higher position. That will go on until another promotion opportunity occurs, at which time you will have to give it to the complainant.

If your employment practices, including promotion policies, are held to be discriminatory, plantwide or companywide, the court may order you to establish hiring or promotion quotas. The theory is that quotas are acceptable in order to correct past discrimination. The company must then hire a stated percentage of minorities until the percentage in the workplace more closely resembles the percentage of that minority in your community or geographical area.

Remember that for an employee, the filing of a discrimination charge is a simple process. A worker doesn’t have to hire an attorney but can initiate a complaint simply by presenting it to a local office of the agency that enforces the state’s fair-employment laws or to the U.S. Equal Employment Opportunity Commission.

The cost to the employer in time, effort, and legal fees begins to run at this point. Even if the employer should prevail at some step along the way, the cost is significant.

That’s why it is important to do things right, to document policies and administer them uniformly.

PHOTO : Develop a system that enables all employees to learn about promotion opportunities on an equal basis.

PHOTO : Don’t impose barriers unrelated to the requirements of the higher position the employee is after.

Thom K. Cope is a Nebraska attorney who specializes in employment law and conducts seminars and lectures nationwide on that subject.

COPYRIGHT 1991 U.S. Chamber of Commerce

COPYRIGHT 2004 Gale Group

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