Today we examine some of the signs of discrimination in promotion decisions.
An employer's departure from its own promotion criteria is evidence of discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 267-68, 97 S. Ct. 555 (1977) (“Substantive departures… may be relevant[] particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.”); Ham v. Washington Suburban Sanitary Comm’n, 158 F. App’x 457, 466 (4th Cir. 2005) (“A jury could logically conclude that any reasonable employer would deem an individual who meets the stated qualifications of the job to be more qualified than one who does not.”); Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (after posting position, “[the employer] awarded the promotion to a [candidate] who qualified for the position only after [the employer] changed the job requirements to allow [that candidate] to qualify and to remove [the plaintiff’s] competitive advantage for the position.”) (cleaned up).
Evidence of superior qualifications can also circumstantially show discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 187-188, 109 S. Ct. 2363 (1989) (a plaintiff “might seek to demonstrate that [the defendant’s] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position”). In Porter v. Merakey USA, No. 22-2986, 2024 U.S. App. LEXIS 18792, at *5 (3d Cir. July 30, 2024), the Third Circuit reversed the district court’s grant of summary judgment in part because the plaintiff “raised an issue of pretext by establishing his objectively superior qualifications for the position compared to the two hired candidates. One candidate lacked the minimum education requirement, and neither had the necessary work experience. Even if these candidates met the minimum requirements, the difference in qualifications between them and [the plaintiff] creates a factual dispute that a reasonable jury could find indicative of pretext.”
Falsification of documents related to the promotion decision indicates discrimination. Proving that a defendant has lied about a material fact is “persuasive” evidence and “often considerably assists the greater enterprise of proving that the [defendant’s] real reason was intentional discrimination.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147, 120 S. Ct. 2097, 2108 (2000). Such an inference is “consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt.” Id. See also, Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999) (“[F]alsifying or manipulating hiring criteria” indicates pretext); Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1398 (6th Cir. 1990) (reversing as clearly erroneous District Court’s failure to find pretext where selected candidate lacked the minimal qualifications for the position - ten years of teaching - and was only rendered qualified by defendant’s later reduction of the minimal qualifications). See, McQueeney v. Wilmington Tr. Co., 779 F.2d 916, 921-22 (3d Cir. 1985) (“It has always been understood - the inference indeed is one of the simplest in human experience - that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence…, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit.”) (emphasis in original, cleaned up)
Telling the rejected applicant that she is "overqualified" is evidence of discrimination. “Overqualified” is a code word for discrimination. “[C]haracterizing an applicant in an age discrimination case as overqualified has a connotation that defies common sense: How can a person overqualified by experience and training be turned down for a position given to a younger person deemed better qualified? Denying employment to an older job applicant because he or she has too much experience, training or education is simply to employ a euphemism to mask the real reason for refusal, namely, in the eyes of the employer the applicant is too old.” Taggart v. Time, Inc., 924 F.2d 43, 47 (2d Cir. 1991). See also, Buckner v. Lynchburg Redevelopment & Hous. Auth., 262 F. Supp. 3d 373, 378 (W.D. Va. 2017) (“stating that someone is ‘overqualified’ on its own lacks sufficient meaning to be a legitimate reason for not hiring an individual. It is like saying someone is a bad ‘fit’ for a job….”).
Sometimes an employer takes DEI too far. The Fourth Circuit ruled that evidence of a DEI-driven corporate culture was relevant and admissible at trial in a reverse discrimination case. Duvall v. Novant Health, Inc., 95 F.4th 778, 788-89 (4th Cir. 2024) (affirming jury verdict for plaintiff who presented evidence that he was “fired in the middle of a widescale D&I initiative … which sought to ‘embed diversity and inclusion throughout’ the company, [] to ensure that its overall workforce, including its leadership, ‘reflect[ed] the communities [it] serve[d],’ [and that] incorporate[ed] ‘a system wide decision making process that includes a diversity and inclusion lens.’”). More recently, the Ninth Circuit reversed summary judgment based in part on the male plaintiff’s evidence that his termination occurred at a time when the defendant was seeking to achieve hiring targets for female managers. Toney v. Clorox Co., No. 24-2567, 2025 U.S. App. LEXIS 9909, at *3 (9th Cir. Apr. 25, 2025) (“[T]he company's IGNITE Strategy, which was in effect at around the time of his termination is circumstantial evidence that Clorox had a goal to increase the number of women managers at the company to achieve its gender ‘representation targets.’”).
Subjective reasons often mask discrimination. Courts recognize that “[s]ubjective evaluations are more susceptible of abuse and more likely to mask pretext,” Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 320 (3d Cir. 2000), especially where the objective criteria the employer identified (e.g., number of years of experience, experience in the relevant field) point to a different employment decision. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (“Particularly in cases where a jury could reasonably find that the plaintiff was otherwise significantly better qualified than the successful applicant, an employer's asserted strong reliance on subjective feelings about the candidates may mask discrimination.”); Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012) (reversing summary judgment where the employer relied entirely on subjective considerations such as “communications skills” to evaluate interview performance, those skills were not emphasized in the job description, the selecting official failed to point to concrete examples of poor answers, and there was evidence from which a reasonable jury could conclude that the plaintiff was significantly more qualified than the selected candidate).
Suspcious anomalies in the interview process can indicate discrimination. See, e.g., Tillotson v. Manitowoc Co., 727 F. App'x 164, 169 (6th Cir. 2018) (Evidence that “company manipulated, abused, or misapplied [scoring] criteria” supports inference of pretext); Dunlap v. TVA, 519 F.3d 626, 631 (6th Cir. 2008) (inconsistent scoring of answers subject to objective measurement supports inference of pretext).
If you believe your employer has failed to promote you for discriminatory reasons, contact the experienced Pittsburgh employment lawyers at the Lamberton Law Firm today.