Discriminatory Hiring/Promotion Claims

 

I wasn’t hired because I’m a woman.

 

What constitutes discriminatory hiring on the basis of gender?

 

Discriminatory hiring occurs when an employer fails to hire a person because she is a woman.

 

How do I prove a claim of discriminatory hiring because of gender?

 

There are generally four legal requirements that you must meet in order to establish a claim of discriminatory hiring because of gender. These requirements may vary slightly according to the region of the country in which you reside. The four legal requirements are that:
1. you belong to a protected group;
2. you were qualified and applied for a job for which the employer was seeking applicants;
3. despite your qualifications, you were rejected; and
4. after your rejection, the position remained open and the employer continued to seek male applicants of your qualifications.

 

It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case.

 

How do I prove that I belong to a protected group?

 

Title VII protects women. Therefore, a simple gender stipulation suffices.

 

How do I prove that I was qualified and applied for the job?

 

Records of your prior work performance may be used to establish that you were qualified for the position. Factors that make you an eligible candidate for the job, such as those found in a resume, will be extremely helpful to the court in determining that you were qualified for the job. Even if you did not apply you may meet this requirement by showing that you had a real interest on the job but did not apply because you were aware of the employer’s discriminatory practices.

 

How do I prove that I was rejected?

 

Rejection from the employer regarding the position at issue will suffice.

 

How do I prove that the position remained open and that the employer continued to seek male applicants of my qualification?

 

You can establish this by showing that the employer continued to search for applicants and that it disproportionately and systematically hired men over qualified women. The employer will have to present its hiring records at the court’s request. Facts used to establish the four legal requirements can also be used to demonstrate that the employer’s reason for taking the adverse action was neither credible nor the true determinative factor in making its decision.

 

What could the employer do to deny my claim?

 

The employer will have to present evidence which establishes that the adverse employment decision was not due to your gender. This can be done by introducing evidence, which if true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Evidence obtained in the interviewing process demonstrating that you were not as qualified as other applicants for the position which you applied may be used to establish a nondiscriminatory reason for denial of hire.

 

What happens next?

 

You must present evidence establishing that the employer’s reason is an excuse to conceal gender discrimination, or that more likely than not being a woman was a determinative factor in the adverse employment decision. This may be established by showing that the employer treated similarly situated men more favorably or that the employer discriminated against other women. The employer’s records showing that it has a pattern of hiring men over women may demonstrate a level of guilt on the employer’s part. The level of guilt will rise if the men hired were not as qualified for the job as the women who were rejected.

 

Keep in mind that the stated arguments are not exhaustive; consequently, there may be other ways by which you can establish the legal requirements and that the employer’s proffered reason for not hiring you is a cover-up for discrimination.

 

 

I think I was denied a promotion because I am a woman.

 

 

What constitutes a wrongfully denied promotion on the basis of gender?

 

A wrongfully denied promotion occurs when a qualified women is passed over for a promotion because of her gender.

 

How do I prove a wrongfully denied promotion claim?

 

There are generally four legal requirements that you must meet in order to establish a wrongfully denied promotion claim. These requirements may vary slightly according to the region of the country in which you reside. The four legal requirements are that:
1. you are a member of a protected group;
2. you were qualified and applied for the promotion;
3. you were rejected despite your qualifications; and
4. another equally or less qualified male employee was promoted.

 

It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case.

 

How do I prove that I belong to a protected group?

 

Title VII protects women. Therefore, a simple gender stipulation suffices.

 

How do I prove that I was qualified for the promotion?

 

Comments by your supervisor (the person in-charge of promotions) stating that you were a "frontrunner due to your qualifications" may suffice to establish that you were indeed qualified for the promotion. Your employment records may also be reviewed to determine whether you possessed the required qualifications to receive the promotion.

 

How do I prove that other less qualified males were promoted?

 

Comments by supervisors (the person in-charge of promotions) stating that you were "the obvious choice for promotion" or that you were "the most qualified person for the promotion" may suffice, because a reasonable juror or judge could conclude that such admission meant that the male who was ultimately promoted was less qualified. The employer’s records can also be reviewed to determine whether the qualifications of the hired male justified his hiring over you. Facts used to establish the four legal requirements can also be used to demonstrate that the employer’s reason for taking the adverse action was neither credible nor the true determinative factor in making its decision.

 

What could my employer do to deny my claim?

 

Your employer must present some legitimate, nondiscriminatory reason for promoting someone other than you. This can be established by presenting evidence that the male ultimately chosen was more experienced and/or more qualified than you were. Also, statistical evidence in the employer’s records establishing that there is a history of promoting women will generally suffice to counter any claim of discriminatory animus; especially if such evidence shows that women are actually more likely to be promoted then men.

 

What happens next?

 

You must then present evidence establishing that the employer’s stated reason is an excuse to conceal gender discrimination or that more likely than not gender was a determinative factor in denying your promotion. Comments by the supervisor in-charge of promotions stating that you were "the most qualified," coupled with statements that "women aren’t typically in that type of position," have a history of being considered sufficient to allow the court to determine that the employer’s stated reasons were false. Also, when an objective review of your qualifications show that the disparities between you and the person chosen for the promotion are so great so as to "jump off the page and slap you on the face," the employer’s reasons for not hiring you may be assumed to be false. In its essence, the phrase "jump off the page and slap you in the face" should be understood to mean that the disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over you for the job in question.

 

Keep in mind that the stated arguments are not exhaustive; consequently, there may be other ways by which you can establish the legal requirements and that the employer’s proffered reason for not promoting you is a cover-up for discrimination.

 

 


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