When employers decide whether or not to promote an employee, they take multiple factors into consideration, including the candidate’s skills, experience, education, attitude, and others. There are certain factors that employers should never consider when deciding whether to give someone a promotion, including a candidate’s color, race, gender, age, religion, national origin, religion, or disability. These types of characteristics are protected, and discrimination against workers during any aspect of employment based on them, including promotions decisions, is strictly prohibited. If you believe that you were passed over for a promotion based on your employer’s unlawful discrimination, you should talk to the New Jersey employment law attorneys at Swartz Swidler.
When is it illegal for an employer to pass you over for a promotion?
While it might seem unfair for your employer to pass you over for a promotion, that does not necessarily mean that it is illegal. Even if someone who did not deserve the promotion received it instead of you, that does not mean that your employer behaved unlawfully. The key difference between illegal promotions and unfair promotions depends on how the employer decides which person to promote.
For example, if you work as a wastewater operator, and your employer wants to choose someone to move into a supervisory position, you might believe it is unfair when your employer chooses a different wastewater operator with fewer years of experience than you have. Your employer’s choice to promote a coworker with less experience than you have is not necessarily illegal. If your employer’s decision was based on the other candidate’s additional certifications, it might simply be the fact that your employer believed your coworker was a stronger candidate for the role.
By contrast, if you are a woman, and your employer has repeatedly made comments about how women do not belong in supervisory positions at wastewater plants, being passed over for a promotion might be illegal discrimination if your employer instead chose a male coworker who has less experience performing the job and fewer certifications than you have obtained. If your employer-based the promotion decision not to promote you on your gender, you may have grounds to file a sex discrimination claim against your employer.
A similar example of discriminatory promotion decisions might occur when you are Black and your supervisor has repeatedly commented in such a way that you think he or she believes that Black people are not hardworking. If you are then passed over for a promotion in favor of a white coworker who is less qualified for the position, you might have grounds to file a race discrimination claim against your employer.
In general, whenever an employer bases his or her decision on which employee to promote based on the race, gender, age, disability, national origin, color, or religion of a candidate, it is illegal. However, if an employer makes the promotion decision on other factors, including longevity, work history, or educational background, it is legal.
How to prove that a promotion was illegal
When people are unlawfully passed over for promotions, they can seek legal help from an experienced employment lawyer at Swartz Swidler. As a plaintiff, however, you will have the burden of proof to show that your employer made the decision illegally based on your protected characteristics instead of a different factor. This can be a difficult task.
Many employers who base their decisions to promote someone else for unlawful reasons try to conceal the discriminatory purpose behind their decisions. They might make up reasons why they chose the other person for the job instead of you. In many cases, an employer will not explain specifically why the other candidate was more qualified for the job. Instead, the employer will simply claim that the chosen person was a better fit for the job than the person who was passed over.
With the help of your lawyer, you can gather evidence to show your employer has shown a pattern of discriminatory behavior in the past. Your attorney might ask you to gather emails that contain discriminatory statements, get copies of your personnel records, and get the names of coworkers or clients who have witnessed discriminatory incidents. You should also keep documentation of every discriminatory incident that has occurred with dates, times, and the names of people who were present.
For example, the female wastewater operator described in the earlier example might have received an email from her supervisor asking if she intended to have children in the future and take time off from work to care for them while the promotion decision was pending. If the woman responded that she would like to have children at some point in the future and was then denied a promotion, she could use the email to show that her employer-based the decision on stereotypes about working women.
If you have very impressive qualifications, your attorney might build a case around that. If you were obviously much more qualified for promotion than the person who received it, this might be strong evidence that your employer-based the decision on discriminatory reasons. However, there will need to be a clear distinction between your qualifications for the job and those held by the other person.
How to handle being passed over for a promotion
Most employers will not admit that they denied a promotion for an illegal reason. However, if you believe that this was what occurred, you should ask your employer to provide you with feedback. Ask questions about what you could do in the future to get a promotion and what qualifications the other candidate had that you did not. Your employer should be willing to share information with you to help you to develop professionally. If your employer is not willing to talk to you about the topic or struggles to come up with a response, that might indicate that the reason you were passed over for a promotion was discriminatory.
If you believe that your employer discriminated against you when you were denied a promotion, you should seek help from the New Jersey employment law attorneys at Swartz Swidler. Contact us today to request a consultation at (856) 685-7420.