A wrongful failure to promote occurs when an employee has been passed over for promotion in violation of state or federal law. When an employee faces discrimination for a protected characteristic and that discrimination results in a failure to promote, the employee may be eligible for damages.
Below, our California 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 an employee?
- 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?
Promotion discrimination is prohibited under Title VII of the Civil Rights Act and under the California Fair Employment and Housing Act. An employer can decide whether or not to promote someone, but sometimes this decision can be based on illegal reasons. When that happens, you may have a wrongful failure to promote case. Illegal reasons not to promote someone include failure to promote due to the person’s:
- Race, Color, or National Origin
- Religious beliefs or practices
- Physical disability
- Mental disability
- Medical condition
- Age (if over 40), or
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.
Under federal law, like Title VII of the Civil Rights Act,1 and under the California law, like 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:
- Age (40 and older)
- National origin
- Citizenship status
- Genetic information.
Protected classes under California law:
- Sexual orientation
- Gender identity and gender expression
- National origin
- Sex (including pregnancy, childbirth, and related medical conditions)
- Medical conditions
- 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.
Both federal and state law prohibit failure to promote on this basis of a person’s age, specifically employees age 40 or older. Employers cannot refuse to promote an employee simply because they are “too old.”
California employers cannot discriminate against a person due to his or her race, national origin, color, or ancestry. This includes all employees, even those not typically considered to be discriminated against (i.e., Caucasian employees). Failure to promote on this basis is illegal.
Discrimination based on a person’s religious beliefs or reasonable practices is illegal under California law.
An employer may not fail to promote a person 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.
An employer may not discriminate against a person because of a medical condition he or she suffers, whether symptoms are currently happening or not.
Whether an employee is married or unmarried or to whom a person is married is not a permissible reason not to promote. This includes whether a person is:
- Divorced, or
An employer may not discriminate against a person due to that person’s gender or gender identity. It may also relate to gender-related issues, like:
- Gender expression, or
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.
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 an employee 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.
A claim for wrongful failure to promote an employee is an action under Title VII of the Civil Rights Act or under the California Fair Employment and Housing Act (FEHA). Employees cannot immediately file a lawsuit against an employer, but must first go through an administrative process.
If the employee chooses to file a state claim, he or she will do so with the California Department of Fair Employment and Housing (DFEH). An employee must file a complaint with the DFEH 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.
If the employee wishes to file suit under the federal law, the complaint must be first filed with the DFEH or the U.S. Equal Employment Opportunity Commission (EEOC). Filing with DFEH is considered filing with the EEOC. If an employee wishes only to file with the EEOC, he or she can do so. 3
Both agencies will investigate to determine if the allegations have merit. Each can:
- Serve subpoenas on the employee and 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.
If the employee and employer cannot resolve the complaint during the process, the DFEH will continue its investigation. The DFEH is required to take action within 150 days of the date the complaint was filed. If it fails to do so the employee can pursue an action on his or her own. 5
If the DFEH or EEOC finds that no violation occurred, the employee will be issued a right-to-sue notice. This allows the employee to file a civil action against the employer on his or her own.
If the agency finds that a violation did occur, it is required to immediately seek to eliminate unlawful discrimination. It can do this through a variety of ways, including:
- Employee’s case file closure
- Dispute resolution, and/or
- Civil action on the worker’s behalf.
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 the employee refused.
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.
With the help of an employment law attorney and after exhausting the administrative process, the employee 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 the attorney and client.
To establish a “prima facie” or initial case under FEHA, the employee must show that:
- He or she belongs to a protected class
- He or she suffered an adverse employment decision, like not being promoted
- He or she was 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 an employee can prove this initial showing, the burden then shifts to the employer to provide valid and legal reasons why the employee was not promoted.
Proving this can be challenging, but is far from impossible with an experienced employment attorney. To prove that the reason the employee was not promoted is that of an illegal reason, the employee 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 the employee or members of the protected class generally.
Once the employer provides a legal reason for not promoting the employee, the burden then shifts to the employee to prove that the reason given by the employer is a “pretext” for the true reason.
An employee 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.
If an employee suffers a wrongful failure to promote, he or she is 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 the employee would have earned with the promotion (or the difference between the current salary and the improved salary)
- Compensation for any improved benefits the employee would have received
- Repayment of the employee’s attorney fees
- Compensation for pain and suffering as a result of the failure to promote, and/or
- Possible punitive damages intended to punish the employer for the misconduct.
These are not necessarily the only remedies available, and every case is different.
Call us for help…
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.
- U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964.
- 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).