Discriminatory Promotion Claims


I think I did not get the promotion because I'm a woman, how do I prove it?


To prove a claim of wrongful denial of promotion, you must show all of the following:
(1) you are a member of a protected class (i.e., a woman);
(2) you were qualified for the position you were not promoted to; and
(3) the employer sought to or did fill the position with a similarly qualified male.


Must I show that I took proactive steps to get the promotion, and that I was qualified?


You do not necessarily have to show that you took proactive steps or applied to get a promotion. Instead, you may compare your qualifications to the employee who was promoted, and if your qualifications are similar, that shows that you were qualified for the position.


Must I show that my employer sought a replacement with similar qualifications?


Yes. You must show that you were passed over for promotion, and that a similarly qualified male was given the position. To determine whether you are similarly qualified, you will want to compare the educational and experiential levels of yourself and the applicant who received the promotion. If you find that those levels are very similar, then you may have a claim of wrongful denial of promotion.


What could my employer do to deny my allegations, and how do I respond to its denials?


Your employer may offer evidence that sex is a bona fide occupational qualification (BFOQ) for the position in question. A BFOQ is a legitimate reason for the employer's decision to promote a different employee. For example, if your employer can show that promoting a different employee was a business necessity, which may provide a defense. You can respond by showing that there are reasonable alternatives available that are less discriminatory than only hiring males for the position. Your employer might also offer other legitimate, nondiscriminatory reasons for denying you the promotion, for example, that you were not promoted because of poor performance evaluations or other work related problems. It is up to you to show that the reasons offered by your employer are mere pretext, in other words, that they are a cover-up for sex discrimination.


Does it matter when the discrimination occurred?


Under the New Jersey Law Against Discrimination (LAD), you must file a claim with the New Jersey Division on Civil Rights within one-hundred and eighty (180) days of the discrimination. If you wish to bypass the Division, and file with the New Jersey Superior Court, you must file within two (2) years of the discrimination.For more information on how to file a claim, href="../files/nj_file.php">click here.


What options do I have if my employer has fewer than fifteen (15) employees?


While you are only protected under federal law if your employee has more than fifteen (15) employees, under the LAD, you are protected regardless of how many employees your employer has. So while you may not be able to file a federal claim, your claim in New Jersey is still valid.


If I prove my promotion claim, what remedies am I entitled to?


You will be entitled to equitable relief, which is relief intended to make you whole again. You may be able to recover remedies such as back pay to compensate you for lost earnings, front pay to compensate for a pay differential resulting from discrimination, injunctive relief to correct your employer's discriminatory practices, or reinstatement to any position that you lost as a result of discrimination.



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