Discriminatory Hiring/Promotion Claims

 

I wasn’t hired because I’m a woman.

 

I think I wasn’t hired because I’m a woman, how do I prove it?

 

You must show:
1. That you are a member of a protected class (i.e. a woman);
2. That you were barred from a position for which you were qualified; and
3. That the employer’s failure to hire you gave rise to an inference of discrimination. This inference can be drawn from the fact that a male was hired instead of you or that after you were denied for the position, the employer continued to seek applicants with similar qualifications.

 

The interviewer asked me some very personal questions. Is that legal?

 

The law prohibits an employer from asking questions during an interview to seek information about your membership in a protected group.

 

The interviewer stated that his customers would prefer to see a man do this job rather than a woman. Is this a legal reason not to hire me?

 

New York State does not recognize bona fide occupational qualifications (BFOQ) that exclude members of protected classes unless the absence of the protected characteristic is material to job performance. The preference of customers, co-workers or employers never justifies sex as a basis for hire.

 

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

 

The employer may raise legitimate reasons for not hiring you, either by showing that sex is a bona fide occupational qualification (that only a man can do the job), or by offering some other nondiscriminatory reason. You would need to show that "but for" your being a female, you would have been deemed qualified. You must present evidence to show that the reasons given by the employer for not hiring you are pretextual (a cover-up for discrimination).

 

I think I was denied a promotion because I’m a woman.

 

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

 

You must show:
1. That you are a member of a "protected class" (i.e. a woman);
2. That you were qualified for the position in question;
3. That you were denied the promotion; and
4. That the promotion was denied in circumstances that indicate sexual discrimination may have been a factor.
An inference of sexual discrimination may be drawn by direct evidence (testimony), statistical evidence (prior incidents) or simply by showing that the position was filled or held open for an individual not in the same protected class.

 

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 to get a promotion. In some cases where sex discrimination has been found to occur, the female employee was passed over for a promotion without her knowledge, and men were sought out for supervisory positions in her department without her being contacted.

 

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

 

It is not always necessary to show that a replacement had similar qualifications. The court has found sex discrimination in cases where a male was hired for a position based upon qualifications not included in the advertisement for the position.

 

My employer promoted another woman instead of me; can I still file a claim for sex discrimination?

 

You can still make out a case for sex discrimination even if you were replaced by a woman, if you can show that you were not promoted because of your employer’s stereotypical expectation of women in your position.

 

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. 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. It is up to you to show that the reasons offered by your employer are pretextual, in other words, that they are a cover-up for sex discrimination.

 

 


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