Failure to Promote
Any type of discrimination in the workplace is illegal, whether it is wrongfully terminating someone, promoting a hostile work environment or failing to promote a deserving and qualified employee if based on a discriminatory reason. Should you be in a protected class and someone outside that class is promoted over you despite your at least equivalent qualifications, you may have a claim for failure to promote based on discrimination.
The California Fair Employment and Housing Act (FEHA)
The main law that protects employees from discrimination in the workplace is the FEHA. Discrimination includes the following classes:
- National origin
- Physical disability
- Mental disability
- Medical condition
- Marital status
- Sexual orientation
- Age (if over 40)
- Childbirth or related condition
Employees are also protected from retaliation by their employees for testifying against them or opposing an illegal activity or conduct under the FEHA. If you feel you may have been the victim of employment discrimination including the failure to promote you, contact the employment discrimination lawyers at The Law Offices of Alex G. Tovarian.
What is Failure to Promote?
A not uncommon complaint by qualified employees is their being passed over for promotion despite stellar qualifications, especially when the promotion is given to someone who is obviously less qualified than them.
You can establish a “prima facie” case under the FEHA, which shifts the burden of proving that the failure to promote you was based on a valid reason to your employer, if you demonstrate the following:
- You belong to a protected class
- You were subjected to an adverse employment decision such as not being promoted
- You were treated differently than similarly situated employees who are not in a protected class
- There is sufficient causal connection between the different treatment and the protected class
For example, if you are over 40, well-qualified for the position, are considered for the promotion but passed over in favor of someone who is 26 years of age, you may at least shift the explanation for your non-promotion to your employer who must articulate a valid reason or reasons for the adverse decision.
If you employer offers a reason, you can rebut it by showing that the decision:
- Lacks any basis in fact
- It was not the actual reason
- It is insufficient to explain the act
Evidence of remarks made by your employer or supervisor or even non-decision makers can create a discriminatory atmosphere against hiring people over 40. Showing that no other employee over 40 has ever been promoted to your desired position is also evidence of a discriminatory intent.
Retain The Law Offices of Alex G. Tovarian
You do not have to be a passive victim of workplace discrimination. The failure to promote attorneys at The Law Offices of Alex G. Tovarian are sensitive to the needs and rights of exploited workers and those who have experienced discrimination. Contact us today for a free, initial and confidential consultation. We have the knowledge, resources and experience to handle failure to promote claims.