I am a female management employee at a large company. I have had the same boss for a number of years and he has promoted me twice in the past ten years. I applied for another promotion a couple of months ago and just learned that a young man with less experience than me received the job. I feel certain I was not promoted because my boss preferred a male in this position. I complained to Human Resources and was told that it was unlikely that someone who had promoted me twice before would all of sudden be prejudiced against me based on my sex. Is it possible to prevail on a discrimination claim under these circumstances?


Yes, it is possible to prevail on a claim of discrimination under these circumstances. However, the courts have held that employees have a heightened burden of proving discrimination when the person they are accusing of discrimination is the same person that previously promoted him or her.

Disparate treatment claims of employment discrimination are analyzed under the burden-shifting framework outlined by the United States Supreme Court in the 1973 case of McDonnell Douglas Corp. v. Green. Under that framework, the burden of producing evidence first falls on the plaintiff employee to make out a prima facie case of discrimination. In a circumstance such as yours, she may do so by showing that (1) she belongs to a protected class (female), (2) she was qualified for the position to which she wished to be promoted, (3) she was denied a promotion to that position, and (4) the job went to someone outside the protected class (male). The burden of production then shifts to the employer, who must present evidence sufficient to permit the judge or jury to conclude that the employer had a legitimate, nondiscriminatory reason for the adverse employment action, which in your case is the company’s failure to promote you. Finally, if the employer meets that burden, then the McDonnell Douglas framework drops out of the picture entirely, and the plaintiff employee bears the full burden of persuading the judge or jury that the employer’s reason for the adverse action was a “pretext,” and that the employer intentionally discriminated against her.

A plaintiff may meet the burden to show pretext using either direct or circumstantial evidence. Direct evidence is evidence “which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” Direct evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer. Circumstantial evidence, in contrast, is evidence that requires an additional inferential step to demonstrate discrimination. It can take two forms. First, the plaintiff can make an affirmative case that the employer is biased. For example, statistical evidence is circumstantial evidence that could, if sufficiently probative, point to bias. Second, the plaintiff can make his case negatively, by showing that the employer’s explanation for the adverse action is “unworthy of credence.”

In Bradley v. Harcourt, Brace & Co., the Federal Court of Appeals with responsibility for California held that “where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory action.” The court based its holding on the principle that an employer’s initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs. The same-actor inference is not a mandatory presumption, or a mere possible conclusion for the jury to draw. Rather, it is a “strong inference” that a court must take into account.

Your question does not include any information as to why you believe your boss’ decision not to promote you was discriminatory, so it is unclear whether you meet the criteria set out above. However, it is clear that your case should be subject to higher scrutiny given the fact that the same boss that made the decision that you believe to be discriminatory, previously promoted you.
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