Employers usually put a lot of effort into developing a nondiscriminatory hiring process. But they don’t always apply the same careful planning to promotions, which can be an expensive oversight. We’ll review a recent case involving an employee who sued her employer for sex discrimination and retaliation after losing out on a promotion when the job’s requirements changed midstream.
Employee Applies For Promotion
Elizabeth Bergene was a journeyman electrician for the Salt River Project’s (SRP) Coronado Generating Station in Arizona. She filed a lawsuit against SRP claiming she was retaliated against for making an earlier pregnancy bias claim. While Bergene was in settlement discussions with SRP on the lawsuit, SRP advertised for an electrical foreman. Bergene met the qualifications and applied for the job.
While Bergene’s promotion application was pending, Jim Pratt became her supervisor and was responsible for selecting the new electrical foreman. When he met Bergene, he greeted her with, “Hi, trouble…I’ve heard about you.” Bergene’s former direct supervisor, Doug Wilson, then told Bergene that she wouldn’t get the foreman promotion if she held out for too much money in the settlement negotiations on her earlier bias claim. At the time, Wilson was advising Pratt on who to choose for the job.
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Job Qualifications Change
Pratt then changed the foreman position qualifications, removing the journeyman electrician requirement that Bergene met and adding supervisory experience, which she had only a limited amount of. Pratt chose Jerry DeGraff for the job. DeGraff had extensive supervisory experience but wasn’t a journeyman electrician. A few days later, Bergene went out on work-related stress and eventually quit.
Employer Hit With Retaliation, Sex Bias Charges
Bergene filed another lawsuit against SRP, this time alleging she was denied promotion in retaliation for her earlier pregnancy bias lawsuit. She also contended that the promotion denial amounted to sex discrimination, pointing out that the plant had few women electricians and no female supervisors. SRP responded that DeGraff got the foreman job because he was more qualified.
The lower court sided with SRP and dismissed the lawsuit.
Changing Promotion Standards Points To Pretext
Now the Ninth Circuit Court of Appeals, which covers California, has reinstated Bergene’s lawsuit. The court explained that there was sufficient evidence that SRP’s stated reason for promoting DeGraff over Bergene was merely a pretext for retaliation and discrimination.
The court found Bergene’s claims were supported by the awarding of the position to a man only after Pratt, in consultation with Wilson, changed the job requirements once the position was already posted so that DeGraff—and not Bergene—qualified. And the subjective nature of certain promotion criteria such as flexibility and communication skills further bolstered Bergene’s claim that SRP promoted DeGraff over her as a form of retaliation.
Negative Remarks Are Telling
The court also pointed to Wilson’s comment that Bergene wouldn’t get the promotion if she held out for too much money in settlement talks as evidence that the promotion denial was related to her earlier pregnancy bias lawsuit. A manager’s retaliatory motive can be imputed to the company if the manager was involved in the employment decision. Here, Wilson advised Pratt during the selection process. Similarly, Pratt’s “Hi, trouble” remark could be viewed as a derisive reference to Bergene’s earlier lawsuit.
Practical Guidelines
Here are some guidelines you can follow to prevent the problems this employer faced:
- Develop clear, written standards. Have clear, written promotion criteria and don’t change them after posting the job. Keep detailed records of your legitimate reasons for selecting one person over another. Save copies of your questions, interview notes, evaluations and other documents that played a role in your assessment.
- Build in review. Having a higher-level manager review sensitive promotion decisions is an important safeguard. This person can catch problems and reduce the chance that your actions will be seen as arbitrary or biased.
- Prevent negative comments. The negative remarks allegedly made by Wilson and Pratt gave extra ammunition to Bergene’s retaliation and sex discrimination claims. Caution all employees that comments that refer to an employee’s past bias complaints, gender or pregnancy—even if seemingly made in jest—are inappropriate and potentially illegal.