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If I didn’t get a promotion, can I sue for discrimination in California?

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Geoffrey C. Lyon - Employment Litigation - Super Lawyers

Answered by: Geoffrey C. Lyon

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The answer to this question depends largely on the facts of your case.

In general, employers have the right to make their own determinations about hiring, firing, promoting and the like. Not every case of someone not getting a promotion amounts to discrimination. Discrimination is a serious charge that requires significant proof.

What Is Discrimination?

The laws in the United States and California protect people who are members of certain classes. When an employer treats an employee unfairly because of the employee’s membership in a protected class, it is discrimination.

The protected classes protect people from discrimination based on:

  • Age
  • Race
  • Sex
  • Sexual orientation
  • Religious beliefs
  • Medical conditions

Discrimination involves treating an employee unfairly because of that person’s age, race, medical condition or membership in any other protected class.

How To Determine Whether You Have Been Discriminated Against

The first sign of possible discrimination is when someone less qualified than you is promoted and you are not. The key here is that the person promoted is less qualified. If you are both equally qualified or if the other person is even more qualified, the promotion cannot be considered discrimination.

Assuming the person promoted is less qualified than you, the next area of examination is inclusion in a protected class. If you are a member of a protected class, you recently took advantage of medical leave or you have a medical condition that requires reasonable accommodation from your employer in order to perform your work functions, you could have a discrimination claim.

The key analysis on this point is that you are a member of a protected class and the person promoted is not. So, if you are a racial minority and the other person is not, this could be an example of discrimination against you.

Some Signs Of Discrimination

There are some common fact patterns that suggest discrimination. If your supervisor has made comments about your medical condition, race or inclusion in any other protected category; if you have recently returned from medical leave; or if you have recently requested reasonable accommodations for a medical condition, any of these could suggest that your being passed over for the promotion was discriminatory. 

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