Employment Law Roundtable | A Focus on Unlawful Discrimination of Transfers and Promotions

In this one-hour DirectEmployers Masterclass Roundtable, DE’s Executive Director Candee Chambers will host a conversation with David J. Goldstein, Esq. a partner at Littler Mendelson, and John C. Fox, Esq, a partner with Fox, Wang & Morgan, to discuss the changing law regarding (1) which transfers are now unlawfully discriminatory, and (2) which “promotions” are susceptible to discrimination law challenge.

TRANSFERS: The Supreme Court of the United States (“SCOTUS”) this week reversed 60 years of lower federal court precedent requiring employees claiming transfer discrimination to show that they were “materially significantly disadvantaged” or to go forward with other proof that their injury was more than “minor”. David and John will discuss the new “simple injury” legal standard the Court has now laid down. Candee will translate the Court’s holding into practical HR operational terms. The panel will also discuss the potential impact the decision may have on in-house “evaluations” (“Disparity Analyses”) by covered federal Government contractors of unlawful discrimination, recordkeeping requirements, and the need for new training of managers, HR, and compliance managers.

PROMOTIONS: Against the background of growing OFCCP interest to evaluate federal contractor “promotions” during Compliance Reviews, David and John will discuss the evolving legal definition of a “promotion” as Title VII and USDOL case law decisions have now defined that tortured term. That discussion will then lead inevitably into considerations of how to develop “promotion pools” composed of employees “similarly situated” for “promotions” and which “Applicants” for promotion should be included in those “promotion” pools large enough to make for meaningful statistical analysis. Candee will discuss the use of “Cohort Analyses” of covered “promotions” to analyze those rejections for promotion which do not lend themselves to systemic statistical analyses. She will also discuss the use of OFCCP-approved “skimming” techniques when determining availability within “feeder” Job Groups available for promotion into superior Job Groups in the coming 12 months of a federal contractor’s Affirmative Action Program for Minorities and Women. 

The panel will also discuss whether “in place” or “non-competitive” promotions involve “adverse action” sufficient to properly be the subject of unlawful discrimination challenges. The Team will also discuss use of “Data Management Techniques” built from “residency periods” necessary to complete prior to promotion and how contractors may use them to remove employees from the promotions “pool” of interested and minimally qualified “Applicants” for “promotion.”