Unfairness in promotions is prohibited under Title VII of the Civil Rights Act and is considered actionable when promotions decisions adversely effect a protected class of employees. Ever been passed up for promotion because as a woman you appeared too macho or because your skin color was too dark? These are basic violations of the promotions provisions of Title VII.
Title VII and Promotion Discrimination Protection
Specifically, Title VII prohibits discrimination in hiring, promotions, terminations, discharge, benefits, training and compensation or any other term or condition of employment in companies with 15 or more employees. Title VII coverage is not limited to companies, however. It also extends to labor organizations, employment agencies and the federal government.
Most states also have laws in place that protect employees from discrimination in promotions. In California, the Fair Employment and Housing Act (FEHA) does not explicitly mention promotions. However, the Act does include a prohibition of discrimination in the terms and conditions of employment. Promotions fall into this category of FEHA protection.
The Close Relationship between Nepotism and Promotions Discrimination
The intersection between promotion discrimination and nepotism can be confusing. Nepotism describes favoritism shown to friends or relatives in employment decision making. It is possibly most profound with the subjective selection criteria is employed to overlook the adequate qualifications of a suitable candidate for the lower level qualifications of another well connected employee.
Nepotism can also lead to the exclusion or ‘forcing out’ of categories of employees already protected under employment discrimination law. For example employers could routinely engage in the practice of hiring relatives only to the exclusion of disabled workers. Conversely, employers may end up routinely forcing out employees of the same race in order to make room for relatives or friends vying for a position or promotion.
Challenging Nepotism Under Title VII
Described in this way, nepotism could be a form of employment discrimination since it enlists a method of differentiating between employees on the basis of subjective criteria that could have discriminatory effect on any one of the classes protected in Title VII.
Put another way, when hiring or promoting relatives over other equally qualified candidates it may be that nothing illegal has occurred unless the employer fails to consider other candidates on the basis of their status as members of any one of Title VII’s protected categories of employees.
For example, suppose an employer repeatedly only promoted his female cousins to a position as waitress in his family-owned diner. Other male employees, equally qualified for the position may have a claim for discrimination on the grounds that gender is being used to discriminate among the employees, and the men are adversely affected even though they are qualified.
Promotions Discrimination in the Courts
Federal courts tend to hold a view that general nepotism, devoid of discrimination based on a protected characteristic, does not trigger a Title VII violation. For example in Wilson V. Delta State University, 143 Fed.Appx 611 (5thCir. 2005) the 5th Circuit rejected a retaliation claim filed in response to favoritism in promotions shown to a paramour of the plaintiff’s boss.
The court reasoned that Title VII does not prohibit promotions based on nepotism or favoritism unless those promotions adversely affect a protected class. In this case, the court noted that the promotion was based on the sexual nature of a relationship rather than gender, thus a retaliation claim had no sound basis since there was no adverse action against a protected class.
Promotion discrimination is a direct violation of law when an equally qualified employee of one category is passed over by another employee not of the same category. In these instances, employees can show that they were not given the promotion due to their status within a protected category of the law. This at least establishes a primae facie case for promotion discrimination and passes the responsibility of offering a legitimate reason for the pass over to the defendant.
Disparate Impact and Promotions Discrimination
When a promotions practice has a disparately different impact on a protected category of employees as a whole, Title VII is violated. Disparate impact theory says that an even though an employment practice can be neutral on its face, if it has a adverse impact based on race, gender or any other the other categories noted in Title VII, it forms the basis of a viable claim.
Disparate impact cases involve evidentiary proof reflecting adverse impact on a protected category of employees as a whole. For example, in a noteworthy case against Bank of America last year, resulting in one of the highest settlement payouts in the history of employment discrimination law, the court ruled that Banks of America’s promotion criteria was discriminatory because it had the adverse effect of routinely excluding African American agents from promotion within the company.
Promotions Tests and Screening Procedures
Title VII does not prohibit all employment tests. The law takes into account that some tests and screenings may be necessary to assess individual performance or proficiency. Rather, it only prohibits tests which are “designed, intended or used to discriminate on the basis of race, color, sex or national origin.” These tests and selection procedures must be job related and consistent with business necessity and must not disproportionately affect any of the protected classes.
Promotions Discrimination is Prohibited Under Title VII
Promotions discrimination is a prohibited Act under Title VII of the Civil Rights Act. The Act protects workers from discrimination in several forms including nepotism that results in discrimination based on status in the protected categories.
Employees should keep in mind that nepotism alone is rarely actionable in court, but promotions based on actual discrimination can be successful. Courts will also hold promotion with disparate impact and certain promotions tests and employment screenings are illegal under the promotions provision of Title VII.