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Choosing Employees for Promotion: A 6-Step Legal Process


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If you’re like most organizations, you’re relying more heavily on internal promotions than in the past. And as greater numbers of existing employees compete for coveted “inside” jobs, expect a corresponding rise in the number of failure-to-promote lawsuits when expected promotions don’t materialize.

HR people and business execs are aware of the legal dangers in hiring outside applicants. But many forget that internal promotions carry such risks.

Base promotions on job criteria

Private employers are typically free to decide when to hand out promotions and raises, unless an employment contract or collective-bargaining agreement puts limits on the organization’s right to pick employees for promotion.

But you still must keep discrimination out of your promotion process.

Reason: Promotions fall under the heading of “terms, conditions or privileges of employment,” meaning they’re covered by both state and federal anti-bias laws, including Title VII.

So make sure your promotion decisions don’t discriminate against employees because of age, race, religion, national origin, color, sex, pregnancy or disability.  To do that, remind hiring managers to base promotion decisions on neutral, job-based criteria and be able to defend those choices with nondiscriminatory reasons.

Typically, to bring failure-to-promote claims to court, employees must show that:

  • They are members of a protected group.
  • They are qualified for (and applied for) the promotion sought.
  • They were rejected despite their qualifications.
  • Other similarly qualified employees who weren’t members of a protected class were promoted instead.

6 steps to legal promotions

Most failure-to-promote suits hinge on inconsistencies in your job-filling process. To ensure a discrimination-proof promotion selection process, you should:

1. Analyze the position. Define which characteristics are essential to the job, including manual and creative skills, education, training and supervisory or managerial ability.

2. Determine neutral criteria for screening candidates, such as the employee’s work record.

3. Develop a promotion policy. Consider whether to give seniority preference and whether you should publicize job opportunities within the organization before going outside. Tip: Don’t require minimum length of service on employees before being eligible for promotions. That only penalizes fast learners or top performers by classifying them as job hoppers. In most cases, you should allow every person interested in a promotion—including the one who you believe is perfect for the job—to apply and be interviewed.

4. Train hiring managers to base promotion decisions on neutral, job-based criteria applied equally to all candidates. Identify and counsel managers who hoard talent by continually denying employee moves.

5. Analyze your promotion system for bias. Make sure it doesn’t eliminate certain categories of people from job advancement. Distribute job announcements widely, not just in public places of your workplace.

6. Avoid specific promises in company handbooks, job interviews and employment contracts that commit your company to handing out promotions.