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How to Avoid Discrimination when Promoting Employees


You have your eye on an employee you’d like to promote. When a position becomes available, you move her into it. You’ve filled the job with a qualified employee. She’s happy with her new role and doing well. It’s all good. Right?

Not so fast. At best, you may be creating dissatisfaction among those who weren’t considered for the job. At worst, you might be setting up your company for legal trouble.

Promotions, which fall under the heading of terms and conditions of employment, are covered by federal and state employment and non-discrimination laws. As such, your promotion practices should follow the Equal Employment Opportunity Commission (EEOC) Uniform Guidelines on Selection Procedures.

In short, get your HR house in order before you promote to fill a position. If you do your homework, employees will feel more appreciated and secure, which goes a long way toward ensuring your business runs at its best. Besides…it’s the law.

Craft a solid promotion policy 

One of the worst things you can do is promote an employee without making sure you have a strong, effective and established promotion policy. Discrimination lawsuits related to promotions are most common when there is no standard promotion policy or it is inconsistent or not well documented.

Your promotion policy should include:

  • Neutral selection criteria that doesn’t create barriers to protected categories
  • Interview and promotion procedures
  • Safeguards against adverse impact on protected groups
  • Procedures for internal communication of positions before a public announcement
  • Outline of steps if an employee wants to apply for a position
  • Documentation of who is interviewed and why they did/did not get the promotion, etc.
  • Compliance with EEOC laws and guidelines

Managers and hiring decision makers should be trained on hiring and promotions, including legal requirements. Hold them accountable for following the promotion process properly.

Be sure to audit your process to make sure it is fair and nondiscriminatory.

Develop systematic rules for eligibility

Back up your promotion policy with a fair, consistent performance appraisal process. This helps employees know where they stand and understand why others were promoted instead of them.

Be specific about performance requirements for being considered for a promotion. For example, you might mandate that all applicants must have a satisfactory performance record and no written warnings six months to a year prior to application. Employees on a performance improvement plan might not qualify.

Although some companies require a certain length of employment before promotion, it often is not a good idea. If employees are on a fast track and ready to be promoted, but haven’t reached the minimum time requirement, you risk them leaving if they’re passed over. 

Keep the process fair and equitable 

To help keep everybody on the same page, carefully craft a job description for the position, not for a person you would like to promote. Define details of duties and essential qualifications, such as education and experience requirements, necessary skills and competencies, work conditions, physical demands and compensation components. Keep descriptions consistent among similar positions.

Level the playing field by interviewing all employees who are interested. If they are not qualified, make sure they understand why they are not qualified. Conduct a promotion interview just like a new hire interview. Ask the same questions and require uniform qualifications.

Communicate clearly and often 

Be sure employees are familiar with the promotion process. This knowledge alone can help diffuse potential problems. Remember that a lack of transparency leads to a lack of trust.

Communicate the opening within your company before posting it externally.

After the promotion has been given, offer support to those who didn’t get the job. Outline the job requirements and why they did or didn’t meet them. Consider working with them so they may be ready in the future. Otherwise, they might become angry due to feeling that they were not taken seriously.

Hopefully, you’ve already cultivated an open door policy so employees feel like they can talk openly. If not, this is a good time to start. Be sure you have a process for resolving employee complaints and grievances that doesn’t just stop at the manager level. 

Help your employees succeed 

Are you doing everything you can to be sure employees are achieving their goals and giving their best performance? Develop career paths for those wanting to advance and provide training and opportunities to increase their knowledge and skills. You might consider setting up a mentoring program to develop and prepare employees for promotion.

Affirmative Action requires a more stringent process

If your organization is not an Affirmative Action employer, your main goal in promotions is to avoid discrimination and not overlook someone because of personal traits.

However, if you are an Affirmative Action employer, you’ll need to generate a candidate pool from internal and external sources that is representative of your labor market. Additional documentation will be required, and you may need to perform adverse impact analysis on promotions.

In a nutshell, the goal is to create an environment where promotions are handled in a fair manner and employees who are looking to advance feel that they have career paths to follow. These steps will help ensure your organization has an effective promotion process and mitigate the risk of potential lawsuits.  

Want to know more details about the legal implications of hiring, firing and promoting? Download our free e-book, Employment Law: Are You Putting Your Business at Risk?, now.