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Failure to Promote: Riverside Employment Discrimination Lawyers

California and federal antidiscrimination laws protect workers from unlawful discrimination in the workplace. These laws prohibit discrimination in all aspects of the employment relationship, from applications, interviews and hiring to assignments, pay, and transfers, and of course discipline and termination. Of the many ways employees are discriminated against at work, one of the most overlooked and difficult to prove is failure to promote. Learn more about this unlawful discriminatory practice below. If you have been unfairly passed over for a promotion in violation of California or federal law, contact the Southern California employment law attorneys at Ochoa & Calderón in Riverside for a free consultation.

Elements of a Failure to Promote Claim

To establish a failure to promote claim in California, the following elements must be proven:

  1. Eligibility for Promotion: You were qualified for the promotion in question. Qualification criteria may include work experience, educational background, and job performance.
  2. Unfair Denial: You were denied the promotion, and the opportunity was given to someone less qualified or equally qualified.
  3. Protected Status: The failure to promote you was based on a protected status. In California, protected characteristics include race, religion, sex/gender, age, sexual orientation, ethnicity, color, national origin, gender identity, gender expression, marital status, pregnancy, HIV/AIDS status, or disability. Discrimination based on political affiliation, military or veteran status, or status as a victim of domestic violence, stalking or sexual assault is also unlawful.
  4. Adverse Impact: You suffered measurable harm, such as financial loss or career setback, as a result of not being promoted.

Proving Your Failure to Promote Claim

Any time an employer is charged with failure to promote, they are likely to respond that the decision was not based on a discriminatory reason. For instance, they might claim the employee was not qualified for the higher position or that another equally qualified person was chosen instead. They might also allege that the employee has not been performing well or has had problems with discipline/insubordination, absenteeism/tardiness, work performance issues, or other excuses that make them unfit for promotion.

Documentation in your possession or the company’s possession can often be used to refute these claims. Powerful evidence includes a record of positive performance evaluations, longevity with the company, and other records that rebut the claim the worker is unfit for a promotion. Conversations with superiors that were witnessed or documented might also help establish that the worker is qualified for the promotion or that the failure to promote was due to a discriminatory motive.

Even without “smoking gun” evidence of discrimination, an employment law attorney can often build a case showing that the employer has a pattern or practice of failing to promote employees of a certain race, gender, ethnicity, religion or other characteristic shared by the employee who was passed over.

Pursuing a Failure to Promote Claim in California

If you believe your boss failed to promote you for a discriminatory reason, taking the following steps can help you achieve justice for this wrongful act.

  1. Consult an Employment Law Attorney: The first step is to consult an employment law firm to evaluate your case and determine the likelihood that unlawful discrimination has taken place. In Southern California, the attorneys at Ochoa & Calderón in Riverside are ready to hear from you.
  2. File a Complaint With DFEH: In most but not all instances in California, you must first file a complaint with the Department of Fair Employment and Housing (DFEH) before going to court. The complaint can also be dual filed with the Equal Employment Opportunity Commission (EEOC), as both federal and state laws might be implicated depending on the type of discrimination you suffered.
  3. Investigation: Either DFEH or the EEOC will conduct an investigation, interviewing the employee, employer, and co-workers, reviewing documents, etc.
  4. Conciliation: If DFEH or EEOC believes a discriminatory failure to promote has occurred, they will try to settle the case with the employer and fashion an appropriate remedy.
  5. Right-to-Sue Notice: If the agency cannot resolve your complaint, you’ll receive a right-to-sue notice allowing you to go to court. In most cases, you have to wait until you have this letter in hand before you can file a lawsuit.
  6. Litigation: By suing your employer, you can potentially get the promotion that was denied you or receive other compensation that makes up for the harm that was done to you. The litigation process involves several stages, including discovery, negotiations, and potentially a trial. The case could be settled at any point up to the conclusion of trial, when a jury will render a verdict regarding whether discrimination occurred.

Damages Available in a Successful Case

If you successfully prove a failure to promote claim, you may be eligible for:

  1. Back Pay: Compensation for wages lost due to the failure to promote.
  2. Front Pay: Future lost earnings may also be awarded.
  3. Emotional Distress: For any psychological harm caused.
  4. Punitive Damages: In extreme cases, additional sums may be awarded to deter the employer from similar actions in the future.
  5. Attorney’s Fees: California law often allows the prevailing employee to recover legal costs.

Contact Ochoa & Calderón to Fight Employment Discrimination in Riverside and Southern California

If you were unfairly denied a promotion because of your membership in a protected class in California such as race, ethnicity, religion, sex, age or others, contact an experienced labor and employment law firm to review your claim. In Southern California, call Ochoa & Calderón in Riverside at 951-901-4444 or 844-401-0750 for a free consultation and immediate assistance fighting for your rights.

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