Discriminatory Hiring/Promotion Claims

 

It happened to me:
A Real Life Story

 

I think I wasn't promoted because I'm a woman, how do I prove it?

 

There are four requirements you must meet in order to prove that you were not promoted because you are a woman. These requirements are:
(1) you are a member of a protected class;
(2) you applied for and were qualified for the position;
(3) you were considered for and denied the promotion;
(4) other employees of similar qualifications who were not members of the protected class received promotions at the time your request for a promotion was rejected.

 

You can automatically show all of these requirements if you show direct evidence of discrimination. Direct evidence is evidence that requires the court to conclude that your gender played a part in your employer's decision not to promote you. The court will determine that gender played a part if the court believes that your employer, if forced to answer truthfully, would admit that he or she took the action because you were a woman. In one case, the employee was able to show direct evidence of discrimination through her co-worker's testimony that her employer had told the co-worker on two occasions that he would not promote her because she was a woman.

 

I think I wasn't hired because I am a woman, how do I prove it?

 

There are four requirements you must show in order to prove that you were not hired because of your gender. These requirements are:
(1) you are a member of a protected class;
(2) you applied for and were qualified for the position;
(3) you were rejected, despite your qualifications;
(4) after you were rejected, the position remained open and your employer continued to seek applicants with the same qualifications as you.

 

How do I show that I am a member of a protected group?

 

In Ohio, you are a member of a protected group because you are a woman.

 

How do I prove I was qualified for the position?

 

To show that you are qualified for the position, you must only show that you met the objective criteria set forth by the employer. You can do this by showing that you were considered for the position beyond the application stage.

 

How do I show that I was considered for and denied the promotion?

 

In order to have a claim based on failure to promote because of your gender, you must demonstrate that an individual who was not a member of your protected class received the job at the time your request for promotion was denied.

 

To satisfy this criterion, you must show that you and the non-protected person, who was ultimately hired for the desired position, had similar qualifications. In your case, a member of the non-protected class would be a man.

 

However, it is important to note that it is insufficient for you to merely to point to a man who received the job in satisfying this requirement. You must also establish that you and the male who ultimately was hired for the desired position had similar qualifications.

 

There is an exception to this rule in failure to promote cases where formal application processes do not exist to apply for promotions. Courts have held that employees do not have to prove they applied and were considered for a promotion when no formal application process existed for them to express their interest, and/or the employer does not notify employees of promotion opportunities.

 

How do I show that I was rejected despite my qualifications?

 

In a failure to hire situation, you must show that you were rejected for the position and that the employer continued to seek applications from persons with your qualifications and/or that a person outside of your protected class was hired.

 

Once I meet the initial requirements listed above, must I prove that I didn't get the job because of my sex, and not my qualifications? If so, how?

 

Yes. In Ohio, there are three steps to prove discriminatory hiring and failure to promote.

 

First, you must establish all of the requirements discussed above by providing evidence to show that each requirement is more likely than not to be true.

 

Next, once you have proven these elements, your employer (or would-be employer) must articulate a legitimate, nondiscriminatory reason to rebut the presumption of discrimination you have established. An example of a legitimate, nondiscriminatory reason in a discriminatory hiring or failure to promote case would be that the person chosen for the position has prior experience and accomplishments which, in turn, made that person a more qualified candidate for the position or promotion. The employer could also offer evidence that you failed to meet acceptable minimal expectations of the position.

 

Finally, if the employer successfully articulates a legitimate, nondiscriminatory reason, you are then required to prove that the employer's reasons for failing to promote or hire you are a pretext for impermissible discrimination. In other words, you must show that the "legitimate, nondiscriminatory reason" articulated by the employer is a guise for the underlining unlawful discriminatory behavior.

 

It is important to keep in mind that courts examine this standard very critically, and it is difficult to prove pretext. Even if your employer failed to strictly adhere to posted job qualifications when choosing another candidate over you, courts have decided this is insufficient to establish pretext for sex discrimination (especially in cases when the chosen employee clearly has more experience or skill.)

 

What if I entered into an employment contract?

 

If your employer has broken some type of employment contract in failing to promote you, you may be able to bring a breach of contract claim against your employer.

 

If the contract is in writing, you will have the option to file your case within fifteen years of the alleged breach (i.e. from the time the employer failed to promote or hire you). If it is not in writing, you will have six years to file.

 

What are my options if I decide to leave my job or I was fired?

 

You may have a claim for wrongful discharge if you were fired or you were constructively discharged after your employer failed to promote you. Constructive discharge occurs when the employer's actions made working conditions so intolerable that a reasonable person under similar circumstances would have felt compelled to resign.

 

Please see Discriminatory Firing , for more information on this topic.

 

My employer has fewer than 4 employees -- is there anything I can do?

 

Yes. In Ohio, while you cannot bring an independent civil action under a claim of wrongful denial of promotion in violation of public policy, you may pursue a contract claim. You will be able to file a contract claim if you entered into an employment contract and your employer has violated the terms of the agreement. For more information regarding employment contracts, please see "What if I entered into an Employment Contract?" above.

 

 

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