Promotion discrimination (or wrongful failure to promote) is a type of workplace discrimination whereby you are passed over for promotion for an improper reason, or in violation of state or federal law. This may give you a claim for damages against the employer.
Below, our California labor and employment law attorneys address frequently asked questions about the wrongful failure to promote claims and how it may affect your case:
- 1. What is a wrongful failure to promote?
- 2. What is a protected class?
- 3. What are legitimate reasons for not promoting me?
- 4. How do I file a claim for failure to promote?
- 5. How do I file a civil action for failure to promote?
- 6. What legal remedies could I receive for wrongful failure to promote?
A wrongful failure to promote occurs when an employee has been passed over for promotion because of a reason protected under California or Federal law.
1. What is a wrongful failure to promote?
Promotion discrimination is prohibited
- under Title VII of the Civil Rights Act and
- under the California Fair Employment and Housing Act.
Your employer can decide whether or not to promote you, but it cannot be based on illegal reasons. When that happens, you may have a wrongful failure to promote case.
Illegal reasons not to promote you include failure to promote due to your:
- Gender
- Race, Color, or National Origin
- Ethnicity
- Religious beliefs or practices
- Physical disability
- Mental disability
- Medical condition
- Age (if over 40), or
- Pregnancy.
If you were not promoted as a result of some form of discrimination, with help from an experienced employment law attorney at the Shouse Law Group, you can obtain financial compensation in the form of:
- Lost wages
- Lost benefits
- Damages for emotional distress and suffering, and/or
- Possible punitive damages.
2. What is a protected class?
Under federal law, like Title VII of the Civil Rights Act,1 and under California law, such as the Fair Employment and Housing Act (FEHA),2 there are certain types of employees who are protected from discrimination. California law protects more classes of persons than federal law.
Protected classes under federal law:
- Race
- Color
- Sex
- Age (40 and older)
- Religion
- National origin
- Disability
- Citizenship status
- Genetic information.
Protected classes under California law:
- Sexual orientation
- Gender identity and gender expression
- Race
- Color
- Ancestry
- National origin
- Religion
- Sex (including pregnancy, childbirth, and related medical conditions)
- Medical conditions
- AIDS/HIV
- Disability: physical or mental
- Age (40 and older)
- Genetic information
- Marital Status
- Military or Veteran status
- Political affiliations or activities
- Status as a victim of domestic violence, assault, or stalking.
2.1. Age Discrimination
Both federal and state law prohibit failure to promote on this basis of your age, specifically age 40 or older. Employers cannot refuse to promote you simply because you are “too old.”
2.2. Race, National Origin, Color, or Ancestry
California employers cannot discriminate against you due to your
- race,
- national origin,
- color, or
- ancestry.
This includes all employees, even those not typically considered to be discriminated against (such as Caucasian employees). Failure to promote on this basis is illegal.
2.3. Religion
Discrimination based on your religious beliefs or reasonable practices is illegal under California law.
2.4. Physical and Mental Disabilities
An employer may not fail to promote you because of a physical or mental disability. Employers are expected to make reasonable accommodations for persons with disabilities. If the accommodation would not be reasonable to expect of the employer, no discrimination has occurred.
2.5. Medical Conditions
An employer may not discriminate against you because of a medical condition you suffer, whether symptoms are currently happening or not.
2.6. Marital Status
Whether you are married or unmarried or to whom you are married is not a permissible reason not to promote. This includes whether you are:
- Separated
- Divorced, or
- Widowed.
2.7. Gender or Gender Identity
An employer may not discriminate against you due to your gender or gender identity. It may also relate to gender-related issues, like:
- Childbirth
- Breastfeeding
- Gender expression, or
- Pregnancy.
There are other protected classes and special circumstances may apply in each individual case. If you feel you were discriminated against and wrongfully passed over for promotion, the employment law attorneys at Shouse Law Group can help you understand if you are in a protected class.
California law protects more classes of persons than federal law.
3. What are legitimate reasons for not promoting me?
If your employer failed to promote you, it does not mean the employer did so based on your membership in a protected class. There are legitimate reasons not to promote someone.
Common permissible reasons not to promote you include:
- Failure to meet the qualifications
- Lack of educational requirements
- Not enough experience for the position
- Another candidate was more qualified
- Poor performance record at the current job
- Failure to commit to the required work schedule, or
- Inability to perform the required tasks of the position, even with reasonable accommodation for a disability.
That said, one of the above reasons — or another lawful reason — may be given as a pretense for the real reason of discrimination. With the skill and insight from one of our aggressive, resourceful employment law attorneys at Shouse Law Group, the true nature of the failure to promote can be discovered. If it turns out you were discriminated against, you may be entitled to compensatory damages.
4. How do I file a claim for failure to promote?
A claim for wrongful failure to promote you is an action under Title VII of the Civil Rights Act or under the California Fair Employment and Housing Act (FEHA). You cannot immediately file a lawsuit against your employer, but you must first go through an administrative process.
4.1. How do I file my claim under FEHA?
If you choose to file a state claim, you will do so with the California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH). You must file a complaint with the CRD asserting the discrimination and failure to promote. The complaint must set forth all of the specific requirements of the law, or it could be dismissed.
4.2. How do I file my claim under Title VII of the Civil Rights Act?
If you wish to file suit under federal law, the complaint must be first filed with the CRD or the U.S. Equal Employment Opportunity Commission (EEOC). Filing with CRD is considered filing with the EEOC. If you wish only to file with the EEOC, you can do so. 3
4.3. What do these agencies do with my complaint?
Both agencies will investigate to determine if the allegations have merit. Each can:
- Serve subpoenas on you and your employer
- Issue written interrogatories, and
- Compel production of documents. 4
Employers are required to respond to complaints within 30 days, although extensions are permitted. Review of the employer’s response to the complaint can help develop the legal strategy going forward.
4.4. When will the agency make a decision?
If you and your employer cannot resolve the complaint during the process, the CRD will continue its investigation. The CRD is required to take action within 150 days of the date the complaint was filed. If it fails to do so you can pursue an action on your own. 5
If the CRD or EEOC finds that no violation occurred, you will be issued a right-to-sue notice. This allows you to file a civil action against the employer on your own.
If the agency finds that a violation did occur, it is required to immediately seek to eliminate unlawful discrimination. It can do this in a variety of ways, including:
- Mediation
- Conciliation
- Your case file closure
- Dispute resolution, and/or
- Civil action on your behalf.
4.5. The agency rejected my case, does this mean it has no merit?
Just because an agency rejects your case does not mean that your case has no merit. Government agencies rarely want to be the ones to have to do the work. Further, an agency could decide to reject your claim because of:
- The strength or weakness of the evidence
- The likelihood of not winning the case
- Limited agency resources to pursue your claim
- The limited relevance of the case to help settle current case law, or
- A fair settlement was offered by the employer but was refused by you.
Rejection of your claim by the agency is not the end, so never despair. Your attorney will guide you through the process of filing your complaint with the agency and will continue to represent you through a civil action.
5. How do I file a civil action for failure to promote?
With the help of an employment law attorney and after exhausting the administrative process, you can file a complaint against the company in California or federal courts. Where to file depends largely on the facts of the case and the strategic decisions of your attorney and you.
5.1. What do I have to prove in my case?
To establish a “prima facie” or initial case under FEHA, you must show that:
- You belong to a protected class
- You suffered an adverse employment decision, like not being promoted
- You were treated differently than similarly situated employees who are not members of a protected class, and
- There exists a sufficient causal connection between the different treatment and the protected class.
If you can prove this initial showing, the burden then shifts to the employer to provide valid and legal reasons why you were not promoted.
5.2. How do I prove a “causal connection” between the treatment and the protected class status?
Proving this can be challenging, but is far from impossible with an experienced employment law attorney. To prove that the reason you were not promoted is that of an illegal reason, you must show that the protected traits were “substantial motivating reasons” for the decision not to promote.
Evidence to prove the causal connection could include:
- Patterns of the discriminatory conduct
- Comments made by supervisors or other workers, or
- Documents, emails, texts, or other evidence identifying discriminatory intent towards you or members of the protected class generally.
5.3. What if the employer gives legal reasons for not hiring me?
Once the employer provides a legal reason for not promoting you, the burden then shifts to you to prove that the reason given by the employer is a “pretext” for the true reason.
You can show that the decision offered:
- Lacks any basis in fact
- Is not really the reason for the failure to promote, or
- The reasons given are insufficient to explain the decision.
The constant shifting of the burdens can seem confusing but is a part of each wrongful failure to promote case.
6. What legal remedies could I receive for wrongful failure to promote?
If you suffer a wrongful failure to promote, you are entitled to legal remedies. While remedies can vary depending on the facts of your case, you could be entitled to legal remedies, like:
- Money damages equal to the money you would have earned with the promotion (or the difference between your current salary and the improved salary)
- Compensation for any improved benefits you would have received
- Repayment of your attorney fees
- Compensation for pain and suffering as a result of the failure to promote, and/or
- Possible punitive damages intended to punish you for the misconduct.
These are not necessarily the only remedies available, and every case is different.
Contact us if your workplace rights have been violated.
For questions about California’s wrongful failure to promote laws, or to confidentially discuss your case with one of our skilled California employment attorneys, do not hesitate to contact us at the Shouse Law Group.
We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Legal References:
- U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964. See, for example, Pollock v. Tri-Modal Distribution Services, Inc. (2021) ; Addy v. Bliss & Glennon (Court of Appeal of California, Sixth Appellate District, 1996) 44 Cal. App. 4th 205.
- California Legislative Information. California Fair Employment and Housing Act (General Provisions).
- U.S. Equal Employment Opportunity Commission. Filing a Formal Complaint.
- Cal. Code Regs., tit. 2 § 10026,
- Cal. Gov. Code § 12965.
- Gov. Code, § 12965(d).