Make Better Promotion Decisions (3/10)

Are you promoting more from within instead of hiring new employees?  If you are, follow these ten steps to ensure that your promotion criteria are clear, faily applied, and enhance your employee retention.

Here is an interesting survey result you may be seeing play out in your own organization.  According to a recent survey from CareerXroads, a staffing strategy consulting firm, responding employers used promotions or internal transfers to fill over half (51%) of their full-time job vacancies in 2009.  This is a significant increase from just 39% in 2008.        The statistics make sense – in a tight economy it is more cost efficient to fill positions internally through promotions or transfers than to risk paying the costs of a new recruit.  Plus you get the benefit of knowing the person’s track record with your organization and in the case of promotions, you normally only make the promotion if the person has performed well.      But, as with many employment decisions, the promotion process is never as simple as it looks.  In fact, promotion decisions can easily lead to discrimination claims if not implemented properly.         Fortunately, many of these claims can be prevented if you use business- and job-related criteria for your decisions and are consistent in how you apply them.  The discussion below shows how courts treat these claims and outlines ten steps you can take to prevent them. Don’t Use Promotion Criteria Inconsistently Any promotion process can lead to discrimination claims if implemented improperly.  Generally, employee claims of intentional discrimination are upheld when the employee is denied a promotion because the employer manipulated the selection criteria or did not adhere to its own stated procedures.        So, for example, in Risch v. Royal Oak Police Dept., 581 F.3d 383 (6th Cir. 2009), the Sixth Circuit allowed an employee to go forward with her sex discrimination claim after she was denied promotion.  The evidence showed that the female employee had “arguably superior qualifications” for the position than the two male employees promoted instead of her and that her total composite score, the weighted ranking given to each candidate, was higher than either male candidate.  Further, the employee provided evidence of a “discriminatory atmosphere” towards women in the workplace, including derogatory comments made by managers and preference in work assignments for male employees.      Similarly, in Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136 (9th Cir. 2001), the Ninth Circuit let an employee proceed with her sex discrimination claim which was filed when she was denied promotion to a position for which she was qualified.  She was able to show that her employer manipulated job requirements to make the preferred male candidate eligible and tacked on additional job qualification requirements not listed in the original posting that benefited the male candidate.        But, if you can show that your chosen candidate’s qualifications were superior to those of an employee not promoted, you likely can protect against these claims.  So, for example, in Surrell v. Cal. Water Serv., 518 F.3d 1097 (9th Cir. 2008), an African-American employee failed to show that she was not promoted because of her race.  The evidence indicated that the white employee promoted had more management experience, stronger communication skills, and was ranked as the first choice by all interview panel members.  Similarly, in Hux v. City of Newport News, 451 F.3d 311 (4th Cir. 2006), a female police officer lost her sex discrimination claim because the city showed that the male candidates promoted to captain were better qualified than she. Subjective Criteria Also Can Cause Lawsuits Employees also have sued successfully when employers make promotion decisions using subjective criteria.  For example, inPatrick v. Ridge, 394 F.3d 311 (5th Cir. 2004), the court permitted an employee’s age-discrimination claim.  The employer’s explanation that she was not “sufficiently suited” for the position was not specific enough to be a legitimate, nondiscriminatory reason not to promote her.        And, in Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639 (4th Cir. 2002), a female employee successfully proved sex discrimination.  Her employer offered inconsistent explanations for its decision to hire a man, considered qualifications not listed in the job posting, and followed different procedures to review the female candidate’s application. Ten Tips to Make Your Promotion Process Fair  A fair and effective promotion process is key to advancing, and retaining, good employees.  So, to ensure equal promotion opportunities for all your employees, you should incorporate these ten strategies into your promotion process: 1.     Publicize promotional openings so that all employees are aware of advancement opportunities.  Some courts have found discrimination occurred when the employer failed to notify employees about opportunities for promotion. 2.     Train supervisors and managers to make decisions based on performance, skills, and experience, and not on group stereotypes. 3.     Limit material to be accessed in candidate personnel files and require supervisors to consider only performance-related information, such as appraisals, attendance records, and recent disciplinary actions.  This restriction can help ensure that decisions are based on nondiscriminatory information and reasons. 4.     Have supervisors identify all employees who have promotion potential so that they can be given full opportunities for training, transfers, or mentoring to build and develop the skills needed for promotion. 5.     Offer accommodations to disabled employees both in the promotion process and in new job positions. 6.     Make training opportunities available to protected-class employees on the same basis as to all other employees.   7.     Ensure that minority, female, and other protected-class employees are not placed disproportionately in jobs that provide little or no preparation for higher-level positions. 8.     Document the rationale behind promotion decisions and explain the decisions to the affected employees. 9.     Allow promotion candidates who have been rejected in the past to be reconsidered after they have received more training or experience. 10.     Encourage employees to discuss concerns about rejections with the human resources department and then give them an appeals process using your complaint resolution procedures.