Sign #1: look around, who do you see?
Corporations have made significant progress in diversifying their employees over the last few decades. But even for those companies who have achieved better diversity in their overall workforce, a stubborn barrier remains when it comes to promoting candidates to the highest-level management positions. As a result, the decision-makers for these promotion selections also lack diversity, which helps to perpetuate the problem.
The next time you are in a management meeting, look around for your company’s senior managers, particularly the executive management team. Do you see many (indeed any) women or racial minorities? If the answer is no and you work for a large company, the lack of a diverse top-level management team can speak volumes.
Statistical evidence analyzing the selection rates for promotion decisions may be relevant to your claim especially if it could be a class action case.
Sign #2: an undercurrent of discrimination exists
Discrimination and harassment at companies can sometimes be out in the open, with racist or sexistlanguage or conduct happening in clear view. Most of the time, however, discrimination and harassment in the workplace is more subtle (while still inflicting real discriminatory harm to the employee and their career). These less obvious types of discrimination include:
- you sometimes overhear snippets of conversations with racist/sexist comments and the talk suddenly switches when you walk by;
- a select cadre of employees (mostly white, mostly men) are invited to socialize outside of work with key senior executives; a golden networking opportunity that rarely, if ever, comes your way;
- these same employees get the choice assignments and opportunities and, ultimately, the promotions;
- similarly, these employees tend to receive the “benefit of the doubt” for their missteps, while your objectively positive results are under-appreciated
Generally, if your case involves open and obvious discriminatory statements and conduct, your case will be stronger. All courts, however, recognize that even if the discrimination you suffered isn’t blatantly sexist or racist, the discriminatory effects are still very real and harmful to you and your career.
In cases involving indirect evidence of discrimination (that is, your colleagues do not make overtly discriminatory statements about you), the types of evidence a judge will consider to see whether you may have been discriminated against includes:
- how the company has treated similarly situated employees;
- whether the company’s reason for not promoting you lacks credibility/they keep changing their explanation;
- the strength of your experience and qualifications as compared to the employee(s) who received the promotion(s); and
- statistical evidence analyzing the rate at which different genders and races are promoted within the company
Sign #3: no robust mentoring program is in place
One of the most important elements in ultimately getting a top-level position can be the opportunity to talk with, learn from, and make lasting connections to the senior leaders in the company. And the way this usually gets done is through networking or mentoring programs, which can be either formal or informal. Without these types of programs, access to, and connections with, senior leaders (and their crucial support) is extremely difficult.
Companies with more diverse top leadership often have strong mentoring systems in place to foster these important connections. Similarly, companies that use a diversity task force or diversity manager tend to see more positive, significant increases in management diversity.
If the CEO, executive team and Board of your company are not enthusiastic supporters of greater diversity within the company and in its top ranks, then it’s unlikely that others will make it a priority.
On the other hand, where the CEO and top leaders make it clear that diversity is both important and will also help the company grow and succeed, then the rest of the workforce is far more likely to work towards that goal. Tone at the top matters.
If the top leaders of the company are personally and consistently involved in diversity initiatives, this has an undeniable impact on the success of the diversity program.
Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.
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