Bias In Promotions: Are Your Procedures Adequate? A 4-Point Checklist

You’ve probably put a lot of effort into implementing a well-defined and nondiscriminatory application process for hiring new employees. But many employers don’t always apply the same careful planning when it comes to promotion decisions-an oversight that can be costly. In one recent case, an African-American employee successfully sued her employer for damages after being passed over for a promotion. The verdict points out the importance of reviewing your procedures to make sure your promotion decisions won’t be overturned in court.

Worker Promised Priority

Carolyn Agonafer worked at an Internal Revenue Service district office. She twice applied for a promotion and was denied both times. Eventually she filed a grievance charging the agency with race discrimination. As part of a settlement with Agonafer, the IRS agreed to give her priority consideration for the next available revenue officer slot.About a year later, a revenue officer position became vacant. Despite IRS regulations, the vacancy was not posted. Agonafer, though, heard about the job from a colleague and applied for it.

Employer Cites Poor English

Although she was to have priority consideration, Agonafer wasn’t selected. The three-person panel that interviewed her claimed that her problem-solving skills were inadequate and she used poor English, including words like “dem,” “dese” and “dose.” They also said she gave incorrect answers to many questions. The position was offered to a white male with less than a year of experience at the IRS.

Agonafer sued the IRS for race discrimination, claiming she was denied the promotion because she was black and in retaliation for her earlier discrimination grievance. A federal court agreed and ordered the IRS to pay her $140,000 in damages.

400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.

Flawed Procedures Suggest Racial Bias

The trial court found numerous problems with the IRS’ decision-making process and concluded that its reasons for not giving Agonafer the job weren’t believable. The court pointed to the fact that she was never informed of the vacancy and that no written record was kept of the questions she was asked or of her answers. It also observed that Agonafer’s speech during the court proceedings was clear and appropriate. Plus, one member of the interview panel had allegedly made racist comments in the past, including a remark that he would not break the “color barrier” by hiring minorities in the IRS branch office. Those allegations supported Agonafer’s claim that the promotion decision was motivated by racial bias.

Promotion Guidelines

The numerous mistakes by the IRS demonstrate how important it is to have fair and objective procedures in place for making promotion decisions. Of course, how you handle promotions will vary depending on the size and structure of your organization and the type of position, but here are four general principles to keep in mind:

1. Get the word out. Formal posting of all job vacancies may not be practical for every employer. But having some system of letting employees know about advancement opportunities is essential, according to Harold M. Brody, a partner with the Los Angeles office of the law firm of Proskauer Rose. Employers have gotten into trouble when job vacancies were communicated through word-of-mouth only-making an employee’s ability to get ahead depend on personal connections.

   In another recent case, for example, United Parcel Service agreed to pay almost $12 million to settle a class action lawsuit filed by black workers who claimed that information about job openings was disseminated through a so-called “tap on the shoulder”-rather than through notices publicized to all employees.

    

2. Develop clear standards. To the extent possible, have clear, written criteria for promotions just as you would for hiring new employees. If you ask a certain set of questions during one promotion interview, ask the same questions of all employees and use the same standards for assessing the answers. However, you don’t have to go so far in regimenting the process that you leave yourself with no discretion in deciding whether the worker will be a good fit for the position.

    

3. Build in review. Having more than one manager review sensitive promotion decisions is an important safeguard. A second person can help catch problems and reduce the chance that your actions will be seen as arbitrary or biased.

    

4. Keep good records. Finally, keep detailed records of the promotion application process and the reasons for selecting one person over someone else. Save copies of your questions, interview notes and any other documents that played a role in your assessment, such as recommendations. Taking the time to articulate the basis for your promotion decisions not only helps show impartiality, but allows you to better explain your choice to disappointed co-workers who were seeking the position.