Promotion discrimination is illegal when someone is passed over for a promotion based on an unlawful discriminatory reason. If you have been the victim of illegal promotion discrimination, you may be entitled to recover damages by filing a discrimination charge. The attorneys at Swartz Swidler can review what happened and help you to understand the legal remedies that might be available.
What is promotion discrimination?
Promotion discrimination is illegal when an employer refuses to promote someone based on his or her membership in a protected class under Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. Employers have the right to decide who to promote, but when the decision is based on an unlawful reason, it is illegal. Unlawful reasons to refuse to promote someone include the following characteristics:
- Color, race, or national origin
- Sex, gender, gender identity, or sexual orientation
- Genetic information
- Religion or creed
- Disability, medical conditions, or genetic information
- Marital, civil union, or domestic partnership status
- Military service
If your employer refused to promote you because of a discriminatory reason, you should talk to the experienced discrimination lawyers in NJ at Swartz Swidler.
Damages in a promotion discrimination claim
The value of a promotion discrimination lawsuit will depend on the specific facts and circumstances. Some of the types of damages that might be available include the following:
- Past lost wages
- Past lost benefits
- Future income losses and benefits in certain cases
- Emotional distress damages
- Possible exemplary damages
- Attorney’s fees
Legitimate reasons for failing to promote
While being passed over for a promotion might seem unfair, it does not mean that your employer discriminated against you. There are many permissible reasons why employers might decide against promoting an employee, including the following:
- Lack of the required qualifications for the position
- Not having enough experience
- Employer chose a more-qualified candidate
- Poor record of performance at your current job
- Inability to perform the position’s tasks even with reasonable disability accommodations
While there are permissible reasons for refusing to promote someone, some employers may give a pretextual reason for passing over someone for a promotion to hide the discriminatory reason. A skilled employment law attorney can investigate and uncover discriminatory reasons relied on by an employer in making an unlawful decision not to promote a qualified member of a protected class.
How claims are filed
If you believe that your employer-based the decision not to promote you on an unlawful discriminatory reason, you can file a complaint with the Equal Employment Opportunity Commission. You cannot directly file a lawsuit against your employer before going through the EEOC’s administrative process. Your attorney can help you to file your charge and gather evidence to support it.
After the EEOC receives your complaint, it will investigate to determine if it has legal merit. It might subpoena your employer, send written interrogatories, and compel you and your employer to produce documents. Employers must respond within 30 days. However, they might be granted an extension for more time to respond.
If the complaint cannot be resolved during the process, the EEOC investigation will continue. The EEOC must act on the complaint within 150 days. The employee may then pursue action on his or her own if the agency does not respond within the requisite period or sends a notice of the employee’s right to sue.
If the EEOC finds that the employer violated the law, it will seek to eliminate the problem through mediation, conciliation, or closing the employee’s case file and allowing the employee to sue. It might also pursue civil action on behalf of the worker.
What you must prove
You must establish a prima facie claim of discrimination in your initial claim by showing the following elements:
- You are a member of a protected class.
- Your employer failed to promote you.
- You were treated differently than other, similarly-situated employees who are not members of a protected class.
- Your differential treatment and membership in a protected class have a causal relationship.
If you establish a prima facie case, your employer will then have the burden to present valid reasons why it chose not to promote you.
Establishing a causal relationship can be challenging. You might present evidence of patterns of discriminatory behavior, comments by supervisors, and documentary evidence of discriminatory intent. Your attorney will help you to gather the types of evidence needed to support your claim.
After an employer presents ostensibly valid reasons for not promoting you, you will then have the burden to prove that the reason give is pretextual. This can be demonstrated by showing that the reason lacks a factual basis, is not the true reason for your employer’s failure to promote or is insufficient to explain the employer’s decision.
Get help from an experienced discrimination lawyer
If you believe your employer decided against promoting you because of a discriminatory reason, you should talk to the attorneys at Swartz Swidler. Call us today at (856) 685-7420 to schedule a free consultation.