The better candidate gets the job. That’s the way it’s supposed to work, but if history has shown us anything, it’s that things don’t always go the way they’re supposed to.
Even though there’s been a lot of good progress in response to the #MeToo movement, discrimination is still far too common. And while it’s often relatively easy to prove cases of retaliation, it’s often much tougher to prove other instances of discrimination, such as when people decide whom to hire and promote.
Sex discrimination and fake rationale in hiring and promotion decisions
As noted by a recent article in The Conversation, studies have repeatedly shown that companies favor men over equally qualified women. This is true for both hiring and career advancement. But the proof is easier to notice at the broad, statistical level than case-by-case.
There are any number of reasons an employer might hire or promote someone else instead of you. Many times, the reasons they give you may be fake, but it takes hard work to expose the deception. In fact, one Court of Appeals claimed that people needed to show a difference in qualifications that was so big it could “jump off the page and slap you in the face.”
Fortunately, if that standard seems unhelpful, the Supreme Court agreed with you. It called out the comment and pointed to several more helpful standards. The Supreme Court said the difference in qualifications might serve as proof of pretext if:
- No “reasonable person” would think the successful candidate had been more qualified
- A “reasonable employer” would find the discriminated candidate “significantly better qualified”
- The discriminated candidate’s qualifications are “clearly superior”
There’s still room to interpret “reasonable” and the nature of the qualifications in question. But these standards point in the right direction.
What can you do?
Generally, you need to file a complaint with the Equal Employment Opportunity Commission before you can sue. Then, when you file your lawsuit, you need to show how the company’s reason for refusing to hire or promote you was false. This requires some legwork:
- Getting evidence to show you were better qualified
- Looking at the company’s track record of sex-based hires and promotions
- Exposing any flaws or inconsistencies in the company’s fake rationale
Obviously, this can be a lot of work. Especially when you consider the standards you need to meet with the evidence you assemble. But sometimes the only alternative is to let your career stall out. If you feel you may have been wrongly passed over for promotion, an attorney experienced with federal employment law can help you evaluate your case and find your way forward.