July 9, 2026

By: Mark T. Sottile

If you have read some of our previous legal blogs, you know that the vast majority of single plaintiff employment litigation is precipitated by an adverse action, most often a termination. When an employee is terminated—purportedly for an illegal reason—they may have a claim for economic damages like back pay and front pay, which flow from the job loss. However, in some instances, as in the case of a failure to promote, a current employee may be the one suing.

When passed over for an internal promotion, a disappointed employee could file a claim for damages that includes, but is not limited to, the difference in salaries between their current position and the sought after one.  Such claims tend to be filed by longer tenured employees who have applied for a position, sometimes more than once.  Failure to promote claims are commonly brought when an employer selects a candidate outside the protected class of the disappointed employee, for example, if the chosen candidate is substantially younger.

Mitigating Against Failure to Promote Claims

An employer can take three steps to avoid failure to promote claims: be consistent, be objective, and refrain from benevolent missteps.

First, employers should use consistent criteria for the hiring process. In selecting which candidates to interview, employers should widely post the job description for the open role, along with all education, background, and experience requirements. To avoid any confusion, the selection criteria must be explicit and applied uniformly. If you are looking to hire someone with masonry experience, then say so as opposed to stating only “general construction experience.” Otherwise, a painter may mistakenly believe they qualify.

Second, to mitigate against personal bias, the interview should be conducted by a panel, not merely one person. The panel should use score sheets that grade relevant, objective criteria such as the candidate’s “experience,” “job knowledge,” and “leadership positions.”  The panel should also maintain their interview notes and scoring sheets, as courts typically credit decisions supported by contemporaneous documentation.

Finally, employers should avoid the “no good deed goes unpunished” trap. I have seen well-intentioned employers accused of discrimination for:

• Granting an interview to an otherwise unqualified candidate as a way of providing interview experience, thereby making it appear that the candidate, in fact, is qualified;
• Making exceptions to the promotion criteria, perhaps to reward a well-respected, longstanding employee; and
• Offering overly polite (though inaccurate) assessments of candidates to avoid coming across as too harsh, even though the candidate did poorly in the interview.

These missteps, although benevolent, can prove costly because they can undermine an employer’s defense that they considered only qualified applicants and applied the promotion criteria fairly and objectively.