Discriminatory Failure to Promote

You’re probably familiar with the term “glass ceiling.” This colloquial term refers to an invisible barrier that prevents qualified women and other marginalized people from achieving desired career advancement. Failure to promote an employee based on their gender, race, national origin, or other protected characteristic is a form of workplace discrimination. It’s not only frustrating — it’s illegal.

Have you been passed over for a work promotion despite your proven abilities? If so, you may have grounds to file a discriminatory failure to promote lawsuit against your employer. This article explains the rights afforded to Colorado employees by both federal and state law. It also details your legal options if your employee rights are violated.

Talk to an Employment Law Attorney

Your employer’s discriminatory failure to promote you can have far-reaching consequences professionally and personally. The employment law attorneys at Robinson & Henry, PC will help protect your workplace rights and hold your employer accountable for unlawfully hindering your professional success. Call 303-688-0944 today to schedule your case assessment.

What is Discriminatory Failure to Promote?

State and federal laws protect historically marginalized employees from workplace discrimination. These laws forbid discrimination in every aspect of employment — from hiring and promotional processes to wrongful termination.

Therefore, it is illegal for an employer to make decisions about job assignments and promotions based on an employee’s membership in a protected class.

For example: Your employer may require you and other employees to take a test before making promotional decisions. That test may not exclude people in a protected class unless your employer can show that the test is necessary and related to the job. U.S. Equal Employment Opportunity Commission

For a quick overview, check out this infographic: Discriminatory Failure to Promote

Colorado Workplace Discrimination Laws

Colorado and federal employment laws share basic standards for workplace discrimination. Although the standards are largely similar, workplace discrimination cases can be complex because different standards apply depending upon key facts.

On a state level, the Colorado Anti-Discrimination Act makes it illegal for an employer to:

“refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any individual otherwise qualified because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry.”
Colo. Rev. Stat. § 24-34-402(1)(a)

Because CADA closely resembles Title VII of the Civil Rights Act, Colorado courts rely on federal cases for guidance in applying the Colorado Anti-Discrimination Act.

Protected Classes

Classes protected under Title VII and Colorado’s Anti-Discrimination Act include:

• race
• religion
• creed
• national origin
• ancestry
• sex
• pregnancy
• age
• sexual orientation
• gender identity (an individual’s innate sense of their own gender, which may or may not correspond with the sex assigned at birth)
• physical or mental disability
• marriage to a co-worker
• retaliation for engaging in a protected activity (i.e., opposing a discriminatory employment practice or participating in an employment discrimination proceeding)

Proving a Discriminatory Failure to Promote Claim

Direct evidence of intentional discrimination is rare in failure to promote cases. Your employer likely will not be so blunt as to say, “I didn’t promote you because you’re a woman.” Therefore, you must typically rely primarily on circumstantial evidence in failure to promote cases.

Elements of a Discriminatory Failure to Promote Claim

The U.S. Supreme Court has developed a four-part test to determine whether a plaintiff employee has established a prima facie case of discriminatory failure to promote under Title VII. Prima facie — Latin for “at first sight” — is a legal claim that has sufficient evidence to proceed to trial or judgment.

In a failure to promote case, you must show all of the following:

1. you belong to a protected class
2. you were qualified and applied for the position
3. you were rejected despite your qualifications
4. the position remained open after your rejection, and the employer continued to seek applications from similarly qualified people
   Price v. Pub. Serv. Co., 850 F. Supp. 934, 940 (D. Colo. 1994)

“A prima facie case of discrimination may be established by policies and practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group.” Bodaghi v. Dep’t of Nat. Res., 995 P.2d 288, 291 (Colo. 2000)

Your Employer Must Explain Why You Were Not Promoted

Once you satisfy the elements listed above, your employer has to give a reason why it did not select you for the promotion.

At this stage, it’s important to note that your employer may simply offer a reason for not promoting you. For example, your company could claim that it did not promote you because you lacked sufficient leadership skills.

Your employer is not required to prove that the reason truly motivated its decision.

The Importance of Pretext in the Employer’s Explanation

Unless your employer had a change of heart and admitted discrimination, they probably offered up what appears to be a legitimate, non-discriminatory reason for why you weren’t promoted. You must be able to prove that this reason was only a pretext for discrimination.

Pretext: a false reason given to justify a course of action. 

In other words, your employer’s stated reason for not promoting you was not the real reason for the decision. Instead, it was merely intended to mask your employer’s actual intent.

Proving Pretext in Failure to Promote Cases

You can generally demonstrate pretext in one of three ways:

1. with evidence that your employer’s stated reason for not promoting you was false
2. with evidence that your employer acted contrary to a written company policy regarding employee promotions
3. with evidence that your employer acted contrary to an unwritten policy regarding employee promotions
   Croix v. Univ. of Colo. Health Scis. Ctr., 166 P.3d 230, 233 (Colo. App. 2007)

Let’s examine how one Colorado employee proved his failure to promote claim.

Bodaghi v. Department of Natural Resources

Ahmad Bodaghi, an Iranian-born U.S. citizen, worked for the Colorado State Land Board as an engineering and physical sciences technician. The State Land Board is part of the Colorado Department of Natural Resources.

In 1992, Land Board Director Max Vezzani issued a “Notice of Proposed Reallocation and Position Examination” for Bodaghi’s position. This meant that Bodaghi’s job was being reclassified at a higher pay level.

Vezzani also sent a memorandum to all department employees encouraging them to submit applications for the position. At a staff meeting, he further urged anyone interested to apply even if he did not feel they fully qualified.

Disparate Practices

Vezzani’s application process was unusual. Historically, the Land Board would automatically appoint a satisfactorily performing current employee to fill a reclassified position whenever there were fewer than four applicants:

“For example, prior to the second reallocation of Bodaghi’s position, Vezzani had upgraded three positions. In each prior case, even though confronted with more than one applicant for the position, the incumbent was selected without the benefit of an examination or interview process.” Bodaghi v. Dep’t of Nat. Res.

The Selection Process

Ultimately, Bodaghi and two fellow department employees applied for Bodaghi’s reallocated position. Since there were fewer than four applicants, a competitive test was not required. Nonetheless, the three-part selection process included a two-hour written examination.

In the end, the job went to a white man. Bodaghi then transferred to another position within the department.

Bodaghi Files an Appeal

Bodaghi appealed his employer’s decision to the Colorado Civil Rights Division. In the appeal, he alleged that his employer had discriminated against him due to his national origin. The department maintained that it had simply selected the most qualified applicant for the position.

CCRD Finds Intentional Discrimination

Following a hearing, an administrative law judge concluded that “but for intentional discrimination, Bodaghi would have been appointed to the position.”

Bodaghi was clearly more qualified, the judge concluded. Furthermore, the “rigorous” selection process was “totally unlike anything that had been done before” in the department.

The judge found that:

“It was the first time such extensive procedures had been utilized to fill an occupied position, and in this case the job performance of the incumbent had been applauded by practically everybody.” Bodaghi v. Dept. of Nat’l Resources

In fact, Bodaghi was the only applicant ever to have been subjected to this selection process.

The State Personnel Board adopted the judge’s findings. It ordered Bodaghi to be appointed to the reallocated position with full pay and benefits. However, the Colorado Court of Appeals reversed this decision following an appeal by Bodaghi’s employer.

State Supreme Court Has Final Say

The case eventually reached the Colorado Supreme Court. The state’s highest court vacated the appeals court’s decision, ruling that the department had in fact intentionally discriminated against Bodaghi.

Failure to Promote Remedies

The Job Protection and Civil Rights Enforcement Act of 2013 allows employees alleging workplace discrimination to seek the following:

• front pay
• back pay
• interest on back pay
• reinstatement or hiring
• attorney’s fees
• costs
• punitive and compensatory damages
• liquidated damages for discriminatory acts or practices based on “malice or reckless indifference to the rights of the plaintiff”

Employees alleging discrimination also have a right to a jury trial. Prior to 2015, employees were able to seek only hiring, reinstatement, promotion, and back pay.

Front Pay and Back Pay

In discriminatory failure to promote cases, employees may be awarded damages for lost back pay from the discharge to the trial and lost front pay from the trial onward.

Back Pay

A calculation of back pay should include your base salary amount and pay raises you reasonably expected to receive. It should also include sick leave, vacation pay, and other fringe benefits during the back pay period.

Front Pay

Front pay is awarded to former employees whose employers cannot rehire or reinstate them within the organization. Back pay is also awarded to former employees.

Employers can forego this obligation if the employee accepts an offer of reinstatement to the same or similar position that accounts for the wages that they’re due.

Courts in the Tenth Circuit, which includes Colorado, generally prefer reinstatement to awarding front pay. Front pay is typically only awarded when:

• the employer is hostile
• an amicable working relationship is impossible, or
• animosity caused by the lawsuit has irreparably damaged the employer-employee relationship.

Compensatory Damages

Compensatory damages are awarded for mental and emotional suffering. These damages pay victims for out-of-pocket expenses caused by the discrimination.

Compensatory damages can cover costs associated with a job search or medical expenses. They can also pay victims for any emotional harm suffered, such as mental anguish, inconvenience, or loss of enjoyment of life.

Punitive Damages

Punitive damages are meant to punish an employer who has committed an especially malicious or reckless act of sex-based discrimination.

Limits On Compensatory & Punitive Damages

Title VII limits the sum amount of compensatory and punitive damages you can recover in a workplace sexual harassment case. The limits vary depending on the size of the employer:

• $50,000 for employers with 15-100 employees
• $100,000 for employers with 101-200 employees
• $200,000 for employers with 201-500 employees
• $300,000 for employers with more than 500 employees
  42 U.S.C.S. § 1981a

Front Pay and Back Pay are Not Compensatory Damages

Back pay and front pay are not subject to the caps on recovery of compensatory damages. Front and back pay are also not considered an element of compensatory damages, and they do not count against the compensatory damages caps.

Liquidated Damages

A Colorado judge may award liquidated damages in order to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded to the victim.

Attorney’s Fees and Other Costs

If you are a victim of your employer’s discriminatory failure to promote, you also may be able to recover attorney’s fees, expert witness fees, and court costs.

Failure to Promote Complaint Process

Filing the Claim

A workplace discrimination claim can be filed either with the Colorado Civil Rights Division (CCRD) or the Equal Employment Opportunity Commission, the federal administrative agency commonly called the EEOC. The two agencies have a work-sharing agreement, which simply means they cooperate with each other to process claims.

Filing a claim with both agencies is unnecessary as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

Colorado’s anti-discrimination law covers employers of any size. If you want to file with the EEOC, your employer must have 15 or more employees.

Filing Deadlines

State Deadline

To preserve your workplace discrimination claim under state law, you must file with the CCRD, or cross-file with the EEOC, within 180 days of the date you believe you were discriminated against.

Federal Deadline

To preserve your claim under federal law, you must file with the EEOC, or cross-file with the state agency, within 300 days of the date you believe you were discriminated against.

After the Complaint is Submitted

When your claim is filed, the EEOC will give you a copy of it with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the claim to the employer.

At this point, the EEOC may decide to do one of the following:

• Ask you and the employer to take part in mediation.
• Request the employer to provide a written answer to your claim and answer questions about it. Your charge will then be given to an investigator.
• Dismiss your claim if the EEOC does not have jurisdiction or if it was not filed in time.

If the EEOC decides to investigate your charge, they may interview witnesses and gather documents. Once the investigation is complete, you and your employer will be notified of the results.

If the EEOC determines that discrimination did not occur, you will receive a notice of your right to sue. This notice gives you permission to file a lawsuit in a court of law.

If the EEOC determines that discrimination occurred, the agency will try to reach a voluntary settlement with your employer.

If your case is not resolved by an administrative agency, you will need to pursue your claim in court.

Taking Your Failure to Promote Case to Court

You cannot file a federal employment discrimination case in court without first going to the EEOC and having the agency dismiss your claim. This process is called exhausting your administrative remedies. The EEOC must issue you a document known as dismissal and notice of rights or notice of right to sue. This document gives you permission to move forward with your lawsuit.

Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the Colorado Civil Rights Division.

State Court v. Federal Court

Because the Colorado Anti-Discrimination Act caps damages, many Colorado attorneys choose to file employment discrimination cases in federal court using federal law.

Deadlines to File Your Discrimination Lawsuit

Federal Claims

A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice of right to sue from the EEOC.

State Claims

A lawsuit based on your state claim must be filed within 90 days of receiving a similar letter from the Colorado Civil Rights Division.

If you miss these deadlines, you may lose your ability to pursue a discrimination case.

Hire an Employment Law Attorney

Discriminatory failure to promote cases require you to meet strict federal and state deadlines. Do not let your career be derailed any further. The Employment Law Team at Robinson & Henry can assist you in filing a claim with the appropriate agency. If this doesn’t resolve your matter, we are prepared to argue your case in state or federal court. Call 303-688-0944 today to schedule your case assessment.