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How do you prove a failure to promote race discrimination claim?

Best Employment Lawyer Answer: Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to … discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). A failure to promote an employee is protected under this provision of Title VII.

An employee state a prima facie case for failure to promote by presenting evidence showing that: (1) the employee was a member of a protected class; (2) the employee was qualified for and applied for the promotion; (3) the employee was rejected despite his qualifications; and (4) the  employer instead promoted a lesser or equally qualified individual who was not a member of his protected class. (Best Law Read: What does prima facie mean?). If the employee meets this requirement, the employer can state a legitimate non-discriminatory reason for selecting the other candidate to promote. The burden then slides back to the employee to show that the reason given by the employer was not true or did not actually motivate the employer to make that promotion decision. (Best Law Read: Employment Discrimination Question: What Is Pretext? ).

What is an example of a failure to promote case?

Best Employment Discrimination Attorney Answer: A recent case out of the Eleventh District Court of Appeals, Sumbak v. Eaton Corporation, dealt with an employee asserting claim a claim for failure to promote based ono race and national origin discrimination. No. 21-11106, 2022 WL 1928777 (11th Cir. June 6, 2022). The employee was Collis Sumbak, a black male of Sudanese origin.

In 2016, Eaton hired Vincent Kee, who was Black, for a tester position. Shortly after, Sumbak informed facilities Manager John Biggins that he wanted to transfer out of the Smyrna facility because he was “not growing” and wanted a higher position. Biggins told Sumbak that he would talk to Production Manager Barrett Hachey about a potential promotion and encouraged Sumbak to take a class at Eaton University, an internal training program, in order to get the promotion. Sumbak believed that he would be promoted by the end of 2017 but was not.

Sumbak’s claim fell apart at his deposition. The Eleventh District Court of Appeals explained: “Sumbak admitted in his deposition that he did not apply for the tester position, stating, “so for me, I’m an electrician. So, I’m not going to apply as a tester,” and he has not pointed to any portion of the record contradicting these comments. Thus, the district court did not plainly err by holding that Sumbak could not make a prima facie case for discrimination for failure to promote.” Id. at *4.
While some employees are lucky enough to be promoted without applying for it, under the law, an employee cannot state a claim for failure to promote unless the employee actually applied for the position at issue. Because Sumbak did not apply, he had no refusal to promote claim as a matter of law.

Respectfully, in my opnion, Sumbak’s attorney should have understood this before bringing the claim – either by getting more facts from Sumbak or better understanding the legal requirements. Bringing claims without merit only serve to undermine any other claim that is brought. Further, even if Sumbak’s attorney was surprised by this testimony at deposition, the attorney should have counseled his client about the impact of such claim and sought to resolve the case through settlement or dismissed the failure to promote claim. Needless to say, it made even less sense to appeal the failure to promote claim after knowing that the employee never even applied for the job at issue. This is why is very important to find a law firm that focuses on employment law cases for employees and has the resources and knowledge to properly represent you.

If the attorney was being paid on an hourly basis, pursuing the failure to promote claim would be even more problematic. At Spitz, The Employee’s Law Firm, we only take employment discrimination cases on a contingency basis, which means that we don’t get paid unless we win – making it pointless to encourage clients to assert claims without merit. (Read: What is the Spitz No Fee Guarantee?).

How do I sue for race discrimination at work?

Best Race Discrimination Attorney Answer:

If your boss or manager is discriminating against you because you are Black or any other race, you need to call the right attorney. Race and national origin discrimination includes being harassed, fired, not promoted, being wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call Spitz, The Employee’s Law Firm to schedule a free and confidential consultation, you will meet with a race discrimination lawyer who will help you determine the best way to pursue your legal claims. Our Cleveland, Columbus, Cincinnati, Detroit, Toledo, Akron and Raleigh lawyers are here to fight for your rights.


The employment discrimination materials available at the top of this race and national origin discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.

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