In today’s competitive job market, being passed over for a promotion or a new position can be disheartening, especially if you believe that discrimination played a role in the decision. In my latest video, “Failure to Hire or Promote: Discriminatory Non-Selection, I discuss ten strategies to help you prove a failure to promote or hire case, commonly referred to as a non-selection case. Below, I’ll summarize key points from the video and provide additional context to help you understand how to build a strong case.
Establishing a Prima Facie Case
To even get your foot in the door of a discriminatory non-selection case, you must first establish what’s known as a prima facie case. This requires you to prove four essential elements:
Membership in a Protected Class: You must demonstrate that you belong to a legally recognized protected class, such as race, color, disability, religion, sex, or age.
Qualification for the Position: You need to show that you were at least equally qualified for the position in question. This could be done through your resume, experience, or other credentials that align with the job requirements.
Non-Selection: It’s crucial to provide evidence that you were not selected for the position. This is often straightforward, as you would typically receive a notification of your non-selection.
Selection of a Non-Protected Class Member: You must prove that the individual who was selected for the position is not a member of your protected class. For example, if you’re claiming race discrimination and are African American, the selected candidate should be someone of a different race.
Shifting the Burden of Proof
Once you establish your prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for your non-selection. However, your work doesn’t stop there. It’s your responsibility to prove that the employer’s reason is merely a pretext for discrimination. Here are several strategies to consider:
Superior Qualifications: Demonstrate that your qualifications were clearly superior to those of the selected candidate. This might include comparing job announcements, position descriptions, and resumes. The EEOC's article on this discusses this in detail.
Statistical Evidence: If the selecting official has a history of favoring one type of candidate over others, despite a diverse pool of applicants, this could be a sign of discriminatory practices.
Unequal Application of Selection Policies: Show that the agency or employer applied selection policies unequally, giving preferential treatment to the selected candidate.
Deviations from Standard Procedures: Highlight any deviations from the employer’s normal selection procedures that may have favored the selected candidate, such as violations of merit system principles.
Inconsistencies in Records: Look for contradictions or unexplained discrepancies in the employer’s articulated reasons for your non-selection, as these can be strong indicators of pretext.
Bonus Tip: Motion for Sanctions
In addition to the above strategies, consider filing a motion for sanctions if the employer fails to maintain proper selection records. Employers are required by law to keep records like resumes, interview notes, and scoring justifications. If they fail to do so, you can use this as evidence to support your claim.
Watch the Full Video
For a more detailed explanation of these strategies and additional insights, I encourage you to watch the full video below:
Navigating a failure to hire or promote case can be complex and is often evaluated on a case-by-case basis. It’s essential to consult with an experienced attorney who can guide you through the process and help you build the strongest case possible. If you believe you’ve been passed over for a job due to discrimination, feel free to reach out to me or another qualified attorney for a consultation.
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