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Published on Tuesday, April 12, 2016

Failure-to-Promote Claims are Common but Still Hard to Prove

Author: Anthony Kaylin

A lawsuit that many HR people are watching is the Twitter failure-to-promote suit that first hit the news  about a year ago. Filed by former Twitter software engineer Tina Huang, it is in the news again because it has been amended to expand the class of plaintiffs. 

Huang joined Twitter in 2009.  She was a high performer and was promoted several times.  But once she reached the title “Staff Engineer,” she hit a brick wall.  Although highly rated in that position, she was denied further promotion. She eventually resigned (in May 2014) and filed suit. There was much highly-publicized back-and-forth between Huang and Twitter, including accusations of violating privacy rights by both sides. 

It may be that Twitter talks the talk but doesn’t walk the walk.  In July 2014, Twitter stated that 30% of its global employees were women. But in tech jobs, that proportion was just 10%. Further, only 21% were in leadership roles.  In an August 2015 posting, Twitter stated that it wanted to increase the proportion of women in tech roles to 16% and in leadership roles to 25% by 2016.

But statistical inferences are not proof; Huang faces a difficult uphill battle because promotion discrimination is very difficult to prove.  She will have to prove that of all the candidates considered, she was the most qualified.  

The court will look hard at how the job posting was written, and will attempt to compare all the candidates who were considered.  Of course, if there was no documentation, just a committee that sat around a table talking about the candidates, Twitter will be viewed as using subjective, not objective, judgment to fill the position and will lose the case.

How can HR act preemptively to head off claims of promotion discrimination before they happen?  HR should conduct various analyses, but—and this is extremely important—under the cloak of privilege of legal counsel. If not conducted under this protective cloak, any information these analyses yield can be discoverable in a lawsuit.

First, review for the past couple of years how long it takes overall for minorities and women to be promoted out of a job title. This requires pulling the date in position in the old position and new position and averaging out the time frames.  

Then review the promotions themselves. First, separate them all by “competitive” (i.e., jobs posted for competitive bidding) and “noncompetitive” (i.e., jobs targeted to specific people) promotions.  With competitive promotions, review the applicants against the qualifications required for the new position on a job-by-job basis. Next, decide whether the promotion was truly competitive and not just a case of the manager going through the motions to comply with company policy. Then review all the promotions made in that department, or by that manager, looking for trends. A two-standard deviation approach is not necessary for this type of analysis, since you are reviewing for potential disparate treatment claims or cohort claims. 

For non-competitive promotions, HR should review which departments employees are being promoted from to ensure that employees are coming from all eligible departments.  Unfortunately, some managers have the habit of stifling promotions of good employees in order not to lose those employees to other departments. In this situation a manager who doesn’t promote will need the special attention of HR and will likely need manager training.   

Second, analyze the time comparison of promotions between affected groups to see if a protected group is slower getting promoted than others. If so, HR needs to investigate how the promotional guidelines are being applied, or if there is something else holding up promotions, for example, an excuse like “we did not have headcount or salary budget for the higher level job.”  Most organizations have work-arounds so promotions can occur despite such administrative hurdles.  

Finally, HR can talk informally with employees to see how they view promotions.  It is a worthwhile exercise.  Optics mean a lot; if employees believe the system is unfair, it will undermine employee satisfaction and raise turnover whether they are right or not.  Also, HR should review employee complaints and discipline logs of managers to see if there are any trends that could affect promotions.   Finally, problems with failure to promote can be detected in exit interviews with a couple of questions: “Would you be willing to return if a better opportunity arose here?” and “Would you recommend someone to work here?” You may be surprised—although you shouldn’t be—that departing employees do say “no” to both questions.

Overall, promotion problems are typically not limited to specific managers or departments, but tend to be an overall trend in an organization.  HR needs to be vigilant to ensure transparency and fairness in the promotion arena.

Source: The Recorder 3/31/16
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