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John
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Category: Legal
Satisfied Customers: 2795
Experience:  Licensed and practicing attorney.
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I was passed over for a promotion 1 1/2 years ago for an available

Customer Question

I was passed over for a promotion 1 1/2 years ago for an available position I was the only candidate qualified for. The same position is available but I didn't rank high enough in the promotional process for consideration. There is only one candidate of the three interviewed that is qualified for the position, a white male. I am a black female and there are no Blacks nor females in this position. Can I file a complaint considering I was passed over more than 180 days ago or does the time to file start when the white male is promoted?
Submitted: 1 year ago.
Category: Legal
Expert:  John replied 1 year ago.

EmplmntLaw1 :

Hi, thanks for submitting your question today, and I'm sorry to hear about your employment issue. What state are you located in ? Different states have different timelines.

Customer:

Virginia

EmplmntLaw1 :

give me one moment to research Virginia law please

Customer:

I understand the statute of limitations varies state to state. I just wanted to know if the discrimination is considered when I was passed over or when the other individual is promoted.

EmplmntLaw1 :

Sorry that took so long to research. My findings are that each paycheck that you've received since not be promoted (which I'm assuming would have resulted in an increase in pay) has renewed your time to file a charge. Further, your charge now would "relate back" meaning go back all the way to the time the white male received the promotion.

EmplmntLaw1 :

Here is the EEOC's position:

EmplmntLaw1 :

The Act restores the pre-Ledbetter position of the EEOC that each paycheck that delivers discriminatory compensation is a wrong actionable under the federal EEO statutes, regardless of when the discrimination began. As noted in the Act, it recognizes the "reality of wage discrimination" and restores "bedrock principles of American law."


Under the Act, an individual subjected to compensation discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990 may file a charge within 180 (or 300) days of any of the following:



  • when a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted;

  • when the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or

  • when the individual's compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice.

EmplmntLaw1 :

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – select the Reply to Expert or Continue Conversation button. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer:

So can I file a complaints for both race and sex and be compensated for both? Is the only compensation is wage?

Customer:

I apologize for the grammatical errors.

EmplmntLaw1 :

Yes you can file for race and sex. You'd be eligible for several types of relief. The entire premise of the discrimination statutes is to make the discriminatee "whole" for the discrimination he or she has suffered. This would include back-pay and benefits, out of pocket costs. Further, compensatory costs may be awarded for things like mental anguish or harm because of the discrimination Likewise, in the remedy may include placing the employee where he/she should have been placed in the company (which may occur in the case of not getting a promotion or raise because of discrimination . Lastly, the federal discrimination laws allow punitive damages against the employer in limited circumstances where the discrimination is found to be blatant.

Customer:

Thanks so much for this informative consultation.

EmplmntLaw1 :

You're welcome. Please leave a positive rating before you exit this chat as it is the only way I get credit for my answers. If you have any questions in the future regarding this matter come back to this thread and I'll be happy to answer. Thanks and good luck with the matter.

John, Attorney
Category: Legal
Satisfied Customers: 2795
Experience: Licensed and practicing attorney.
John and 10 other Legal Specialists are ready to help you
Expert:  John replied 1 year ago.
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Customer: replied 1 year ago.


The white male with the qualifications was promoted yesterday and I'm ready to file a complaint with the EEOC. What key statements or words do I need to make sure I present when I file the complaint?

Expert:  John replied 1 year ago.
You really don't need to be all that specific. you'll need to first off check the boxes for sex and race discrimination. You'll have to allege how you were discriminated against - so you'll need to explain you're an African american woman who is qualified for the the position and how you were bypassed for the promotion in favor of a white male who is less qualified.
Customer: replied 1 year ago.
Thanks for the legal advice. One last question, when it comes to hiring & promotions, is the organization supposed to reflect a percentage of the diverse community? What I'm asking is there supposed to be a certain percentage of minorities in every position of an organization, especially an organization of over 200 employees?
Expert:  John replied 1 year ago.
What you are referring to is "adverse impact" analysis vs. "adverse treatment";l I'll explain. You have been referring to adverse treatment above - the key difference between adverse "treatment" and "impact" is intent. In an adverse treatment case, the employer is alleged to have intentionally discriminated against the employee or candidate because of his/her race. IN adverse "impact" analysis, however, the intent of the employer is not relevant. Discrimination is alleged an proved simply by the % of minorities filling positions. The EEOC current guidelines state that employers should have minorities in filling positions at the rate of 4/5ths or 80% Of the majority represented racial group (usually whites). The employer not having this representation of minorities may have violated the law unless they can prove that their selection procedures are valid, called for by business necessity and there is no less discriminatory method of selection.

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