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How do you prove a failure to promote employment discrimination case?

Top Employment Discrimination Lawyer Answer: Under Title VII of the Civil Rights Act of 1964, failure to promote cases have the same essential elements as a wrongful termination claim. An employee has the choice to prove a case of discrimination based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, or disability by showing direct evidence of unlawful conduct or through indirect evidence using the burden shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The first step under the McDonnell Douglas test requires the employee to present sufficient evidence that (1) he/she/they was a member of a protected class; (2) he/she/they was qualified for the job held (or the position applied for in a failure to promote case case); (3) the employee suffered an adverse employment action (i.e. not promoted); and (4) the employee was treated different than or replaced with someone outside of the protected class (or in a failure to promote case, the position was given to someone outside of the protected class). (Best Law Read: My Company Doesn’t Allow Women To Be Promoted!; I Wasn’t Promoted Because I’m From Another Country. Best National Origin Discrimination Lawyer Advice!; Gender Discrimination: A Failure To Promote Case Hits $500k Verdict). The second step is for the employer to state a legitimate business reason for the employment action. In the third step and final step, the employee prevails on the Title VII employment discrimination claim by showing that the employer’s reason is pretext. (Best Law Read: Employment Discrimination Question: What Is Pretext?; How Do I Prove That My Employer Lied About Why I Was Fired?; How Do I Prove Pretext For My Wrongful Termination?; Yes, Employers And Their Attorneys Lie).

Can I sue for a failure to promote me even if I did not apply or there was no open position above me?

Best Title VII Lawyer Answer: Unfortunately, even the best workers who deserve a promotion do not have a failure to promote claim under Title VII if there is no promotion available or the employee does not apply for a promotion. (Best Law Read: Applying For A Job Is Key To Failure To Promote Claim).

Let’s take a look at the United States Court of Appeals for the Third Circuit’s recent decision in Claiborne v. Se. Pennsylvania Transportation Auth., No. 21-3305, 2022 WL 4180977 (3d Cir. Sept. 13, 2022). In that case, Norman Claiborne, who is Black, worked at the Southeastern Pennsylvania Transportation Authority. In 2009, Claiborne passed a qualification test that qualified him for the position of Fueler. However, no Fueler position became available during the relevant time period and, as a result, Claiborne never had the opportunity to apply for the position.

Based on this, the United States Court of Appeals for the Third Circuit affirmed the dismissal of the failure to promote claim:

SEPTA explained there were no open Fueler positions between 2010 and 2014, in part because management sought to trim an overstaffed workforce. Claiborne conceded that point, acknowledging that “[b]etween ’10 and ’14, there were no open positions” for Fueler—the position for which he was qualified. App. 379. That concession dooms his failure-to-promote claim at step one of the McDonnell Douglas test.

Id. at *1. Specifically, Claiborne could not show that he was qualified for the position that he applied for because he never applied for the position. Further, since there was never a position open, Claiborne could not show that the employer filled the non-existent position with someone from outside the protected class. Game over and Claiborne does not make it to the second nor third steps of the McDonnell Douglas test.

Do I have a good failure to promote employment discrimination case?

Best Employment Lawyer Answer: If you think you were passed up for a promotion because you are a woman, Black, Indian, Hispanic or any other race, national origin, gender, age, religion or disability, you need to talk to a skilled employee’s rights attorney to get your case individually analyzed. You can do so by calling the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, and Raleigh to get help with your potential failure to promote or glass ceiling claims now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment discrimination law website is an advertisement. The failure to promote based on race, gender, disability discrimination materials available at the top of this page and at this employment law and wrongful termination website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can my boss only promote men”, “What should I do if Black employees are constantly be passed over for promotions,” “My supervisor refuses to promote older employees” or “I was denied a promotion even though I am more qualified than the White men that keep getting advanced”, it would be best for to contact our top attorneys to obtain advice with respect to any particular employment law issue or problem. 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, Brian Spitz, or any individual attorney.

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