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Sidestep legal pitfalls in employee promotion.

Take all reasonable measures to prevent charges of discrimination from disgruntled employees who didn't make the grade.

One of the most complex personnel decisions for an employer to defend legally is having promoted the appropriate employee to a position of greater responsibility. Often there is no obvious choice among internal and external candidates or multiple internal candidates who seem to be equally qualified. As a form of personnel selection, promotions are subject to the same close legal scrutiny afforded potential employees to guard against discrimination. * Promotion law. Discrimination in employee selection is prohibited by several Federal statutes, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Executive Orders 11246 (1965) and 11375 (1967), the Age Discrimination in Employment Act (ADEA) of 1967 (with 1978 amendments), the Rehabilitation Act of 1973 and 1974, the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act of 1990. Since most promotion decisions are to some extent based on appraisals of performance in a lower position, some authors have argued that the Uniform Guidelines in Employee Selection Procedures, issued in 1978 by the Equal Employment Opportunity Commission (EEOC), are applicable. The guidelines describe the Federally mandated procedure for avoiding discrimination in selection decisions. With regard to promotion, however, the courts have not been stringent in following the Uniform Guidelines unless some form of selection test is used in the promotion decision.[1]

The burden of proof in alleging promotion discrimination initially rests with the plaintiff. In McDonnell Douglas Corp v Green, 411 US 792 (1973), the Supreme Court states that the plaintiff must demonstrate a prima facie (self-evident) case of discrimination in the selection process by showing that the plaintiff belongs to a minority group, applied for (and was qualified for) a job for which the employer was seeking applicants, and was rejected despite having the appropriate qualifications. The position must have remained open afterward, with the employer continuing to seek applications from people who had the same qualifications as the complainant.

If the plaintiff succeeds in establishing the four points listed above, the burden of proof shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the promotion decision, in the words of the Supreme Court. Crucial to the defense is supporting evidence such as performance on lower-level tasks, failure to acquire the necessary credentials for the higher-level position, poor performance in higher-level responsibilities, and superior credentials of the person promoted. * Established procedures. The success of an employer's defense rests on reasonable promotion criteria, documentation, and consistency of action. in Nord v US Steel Corp, 37 Fair Empl Prac Cas (BNA) 1232 (11th Cir 1985), a female clerk was denied promotion even though she had received "as good as most" and "above average" performance evaluations over six years.

She received her first poor evaluation after twice applying for promotion and was eventually discharged because of an inability to get along math fellow employees and a bad attitude. In ruling for the plaintiff, the courts found that the employer had built a mechanism for sex discrimination into its promotion process. For example, all management personnel were male, employees were not told the qualifications needed for promotion, no clear mechanism existed for making promotion opportunities known, and no standards or procedures for promotion had been established. * Performance shortcomings. Employers have successfully defended their promotion practices by citing evidence of poor performance in the plaintiff s regular duties.[2] The courts ruled in favor of the employer in Jackson v Gulf Oil Corp, 23 Empl Prac Dec (CCH) 15,877 (SD Tex 1980), by finding that a failure to promote the plaintiff did not constitute race or sex discrimination. Performance documents and testimony showed that although the plaintiff met "minimum job requirements," she needed extra time to complete assignments and experienced difficulty in accomplishing tasks that required analysis. The court noted that the employer had attempted to motivate the employee through merit increases, awards, and developmental assignments. Performance appraisals documented the employer's concern about the plaintiff s attitude and cooperation. * Lack of credentials. Spelling out promotion criteria to employees strengthens the defendant's case. Such action includes identifying the credentials needed to function effectively at the next-higher level.

In Casas v First American Bank, 31 Fair Empl Prac Cas (BNA) 1479 (DDC 1983), a female employee whose performance ratings were "commendable" and "competent" made no effort to improve her skills to handle a higher-level position despite encouragement to do so. During her performance appraisals, she was counseled on deficiencies and consistently evaluated as not promotable "at this time." She was repeatedly advised to read recommended literature, had twice declined opportunities to perform limited supervisory responsibilities, and had quickly dropped out of the institution's career development program. Her own unwillingness to improve led the court to dismiss allegations of promotion discrimination.

In a similar case, Zell v United States, 20 Fair Empi Prac Cas (BNA) 1534 (DDC 1979), a Government chemist whose evaluations recorded average and below-average performance filed suit alleging discrimination in promotion. The employer showed evidence that the plaintiff had failed to meet criteria for promotion even though a peer-review panel had once recommended her.

Although the plaintiff had received extensive opportunities for travel and education, career development counseling, and assignments to sharpen her skills, deficiencies remained. As the employer noted, she had failed to obtain a postgraduate degree; win any honors, awards, or patents; hold an office or committee position in professional societies; make presentations at professional meetings; or serve as senior author for any published materials. The court concluded that no discrimination due to age, sex, or national origin had taken place. * Missed chances. Often an employee can be temporarily assigned the responsibilities of a higher-level position as a developmental opportunity and to permit supervisors to assess the person's promotability. Performance on temporary higher-level jobs should be documented, as brought out in McCarther v Camelot Inn, 32 Fair Empl Prac Cas (BNA) 903 (ED Ark 1981).

In that case, a black clerk charged his employer with racial discrimination in promotion when he was not made manager of a department. The employer justified the decision by documenting the plaintiffs poor performance during a temporary two-week assignment while the department manager was on vacation. Although the plaintiff s deficient performance was discussed with him, he became resentful and uncooperative when he was subsequently not promoted. Dismissal followed and he took the employer to court, where it was found that the plaintiff's failure to be promoted had been caused by his inability to perform at a higher level when given the opportunity to do so. * Superior credentials. Documenting the "fit" of a successful candidate adds strength to the employer's position in defending an accusation of promotion discrimination. This presumes that promotion criteria have been made generally available and are understood by candidates.

In Smith v Secretary of the Navy, 19 Empl Prac Dec (CCH) 6941 (DDC 1979), an electronics engineer alleged that racial discrimination in his previous performance appraisals had twice led to denied promotions. Defending its decision about one of the cited instances, the employer showed that the person selected had specialized experience described in the vacancy announcement. The plaintiff lacked that experience.

The employer defended the three factors and their weights used in the promotion decision: experience, 60%; supervisory performance appraisal, 20%; and promotion potential, 20%. The court found insufficient evidence of racial discrimination in the performance appraisal to uphold the plaintiff s charge. * Avoiding discrimination. In light of the statutory and case law cited in this article, the following recommendations, summarized in Figure 1, should help laboratory managers sidestep legal pitfalls and discriminatory practice in promotions.

1. Establish procedures. Tell employees about the laboratory administration's position on hiring from outside and promoting from within. Publish and discuss with employees the mechanism by which internal candidates learn about promotion, are counseled regarding promotion, and apply for it.

2. Post vacancies. All eligible employees should be informed about opportunities for promotion. Such announcements should include descriptions of the characteristics being sought.

3. Define criteria. The factors and weights that will be used in selecting an individual for a given opening should be put in writing. They should then be discussed with all the candidates for promotion to that position.

4. Address potential. An employee's current performance may suggest his or her potential for future assignments. Carefully documenting performance is therefore relevant with regard to promotion or its denial. A statement about the employee's potential for promotion should be recorded in written performance evaluations. Poor or average performance does not suggest success in a higher-level position.

Exercise care in considering which of the person's current responsibilities are similar to those of the next-higher position. Supervisors often make the mistake of neglecting to include in written appraisals an assessment of performance in delegated or temporarily assigned duties in a higher position.

5. Assist development. During the verbal part of a performance appraisal, provide career counseling. Describe opportunities that will help prepare the employee for promotion. Counseling should be realistic regarding the employee's chances for promotion. Such opportunities might include new assignments in the lab, attendance at seminars and workshops to assume new technical skills, and any experience that would help the person develop managerial skills.

6. Document decisions. The key to defending the selection of an employee through promotion is adequate and consistent documentation. Make promotion decisions in keeping with information contained in performance appraisals and other documents. The characteristics of the candidate sought and the individual promoted must match. Published promotion procedures must have been followed. * Recruiting from within. Promoting an employee to a higher-level position is often prudent. Managers must recognize that this selection decision is governed by the Uniform Guidelines in Employee Selection Procedures.

When considering an internal candidate for promotion, the employer has a dual responsibility: to have provided career development opportunities and assessed documentation of the employee's performance in his or her current position and, where applicable, on temporary new assignments. To defend allegations of promotion discrimination successfully, the employer must have recorded performance shortcomings, noted the failure of the employee to acquire higher-level Skills, recorded poor performance in attending to advanced responsibilities, and documented the superior credentials of the candidate who won the job.

Build legal supports into

year promotion process

* Establish procedures

for promotion

* Post openings promptly

* Define and discuss

promotion criteria

* Address promotion potential

in performance appraisals

* Make opportunities for

professional development

available to employees

* Make your promotion

decisions consistent with

your documentation


[1.] Martin DC, Bartol KM, Levine MJ. The legal ramifications of performance appraisal. Employee Relations Law J. 1986-1987; 12:370-396. [2.] Snyder JR. Assessing the legality of performance appraisals. Clin Lab Management Rev. 1991; 5(6): 483-A89.

The author is dean and professor of allied health sciences, School of Allied Health Sciences, Indiana University School of Medicine, Indianapolis.
COPYRIGHT 1992 Nelson Publishing
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Author:Snyder, John R.
Publication:Medical Laboratory Observer
Date:Sep 1, 1992
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