Not Promoted Due To Reprisal for a Harassment Complaint I Made in the Past

A question to Ask the Workplace Doctors about how to show that being passed over for promotion is reprisal for a harassment complaint made eight years ago.

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Eight years ago I filed a sexual harassment complaint against my manager for making unwarranted physical contact with me and it was my word against his. The end result was that he was removed from the office and given the option to retire, being that he was eligible.

I have been with the company for 21 years and have been a model employee, never call in nor do I have any disciplinary action in my file. I have applied for many positions for the last eight years, only to be denied. I have detailed (acted in positions) in several departments, received a good report upon completion and then denied upon interviewing for upward mobility. Some departments I have detailed in more than once.

The manager states that I need more exposure and to do that I must detail in his office. I have made 3 requests for details only to be ignored or told “thanks”, but no action. Others have been invited for details that do not have the qualifications nor the experience that I have. I also have a Bachelor’s degree in Business Administration.

Last year I was in a group of  three that interviewed for the same position. I am currently–and for the past 10 years have been–in a supervisor in that section.  The group included a Caucasian, Hispanic and African American, (myself). Since then, the other two have been promoted as I have continued to apply for the same positions. This year I was chosen to interview for a higher level position than the initial and again upon not receiving the promotion was told that I need more exposure. I am seeking advice on how to handle this situation as I am truly being treated unfairly. Any assistance would be appreciated.

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Hello and thank you for the question to the Ask the Workplace Doctors site. You ask how to prove that unfair promotional practices are reprisal for a harassment complaint you made eight years ago. From what you describe, you have gotten your hopes up several times, only to be disappointed. And, you feel you have reached the end of what you can do to get promoted. I can imagine how it must feel, especially given your long work history there. However, being honest and realistic about it, I think it will be almost impossible to prove your lack of promotion is because of the complaint. You will have to have strong evidence that every person involved in promotional processes since then are purposely selecting people who do not have the required level of knowledge, skills and abilities–and they are doing it solely as a form of reprisal, because of your complaint eight years ago.

Or, you would need to convince a reviewing authority, EEO representative, a judge, jury or panel, that it isn’t reasonable that anyone other than you would be picked for the positions you seek.

However, we are not attorneys and do not have specific expertise in this area, so you may find it helpful to ask for a free consultation with an attorney or a paralegal for an attorney who specializes in employment matters of this nature. Or, you may wish to call the EEO office for your region and ask to get assistance. You don’t need an attorney to do that, since the role of the EEO is to represent employees in situations of this nature. Or, you may want to talk to some group or entity within your organization that handles such matters.

Whether or not you contact another person or agency, my thoughts about the situation may be helpful.

I’ll focus on the selection process, since that is a key issue.

1. You seem to be working for a large organization, which would indicate there is probably a written promotional process that outlines the steps involved in promotions.  If that is the case, you probably also will have a job description with the KSAEs (Knowledge, Skills, Abilities, Education and Experiences) considered requirements for success in the position being sought. You also will have an HR Section who coordinates the processes.

*Be able to explain clearly, with documentation, the process that was used when you were considered for promotion or for details to an acting position. Are decisions made solely by the executive or higher level manager in the section where the position is open or is it by a panel or group, or is it someone else? Were the people who made the decisions friends of close colleagues of the person who had to resign? Has anything been said to you that would indicate that is being held against you now? Was there strong support for that person at the time and it could be lingering or did he have a reputation for similar actions?

*Is there an interview, assessment center process, written test, review of your personnel history or some combination of things used to create a promotional list? Or, is it completely an arbitrary decision, without any testing?

*What opportunities does each candidate have to show readiness for the new role and the work it involves? Were candidates for a job given feedback or rating forms or numbers?

Those are all things that can present the picture of the situation more clearly if you ask someone to provide legal assistance or if you are talking to an EEO representative.

*Is there some aspect of the testing that has seemed to be a deciding factor for candidates in the past? Often it is verbal skills and the ability to engage others effectively. Sometimes it is a specific knowledge or skill area. I often say that candidates need a toolkit and a portfolio. The toolkit is the education, job knowledge and technical skills of the job. The portfolio is the verbal skills, interpersonal relations, professional demeanor and effective judgment, problem-solving and decision-making in real-life experiences as well as testing situations.

Those who seek management positions especially need knowledge of fiscal and staffing procedures and policies, but they have to combine it with higher levels of team-building, interpersonal skills and the ability to relate to those outside the organization.

You know all of that, I’m sure, but I’m writing it as a reminder of the things that come into play when selections are made for promotion. If you want to show bias against you, because of the complaint eight years ago, you will probably need to show that the process was either used incorrectly or that it is a faulty process.

2. About Detail assignments: You mentioned being Detailed to several assignments—given an acting position—but someone else was selected. If the person selected had also done a Detail, the manager may have viewed that person as being more effective, overall, than others who were Detailed, including you. If the selected people had not done a Detail in the assignment, that fact could be very supportive of your contention that you are being passed over for some reason—and you believe the reason is your complaint in the past.

From the organization’s perspective, it could be said that not everyone gets a Detail assignment, so you have been given multiple opportunities to show your capabilities. There are probably others who think THEY should have gotten the Detail assignment, not you. So, consider your work in those assignments and exactly what was said during your work there and at the conclusion. Was it merely courteously supportive or was it effusive about the KSAs you demonstrated? Could some of those evaluations be used to convince HR or others that something is not right about the promotional process? If you don’t have copies of any performance evaluations you received during those times, see if you can get them.

3. About “exposure”. Since that has been mentioned to you, I think it is time, if you’re not already doing it, to ensure you have some things in writing. Consider writing a cordial letter or email to your manager asking if there are other methods for you to demonstrate your readiness for the new role, other than being Detailed to the assignment, since that is obviously not something that can be done right away. Or, if being Detailed is the only way to gain exposure, are their specific techniques or methods about which he or she could provide some coaching ideas for being selected for the Details? That will at least get their attention, especially if they have promised and promised but never done anything to guide you down that career path.

4. Do you have anyone in higher positions to whom you can be honest and they will be honest with you—and won’t repeat your comments? Could you find someone at that level and get them to give you some of their own perspectives about the situation and you within the situation? Ask for an honest critique of what could be getting in the way of your promotions. If there isn’t anything significant, you will have even more reason to think there is something wrong.

Among the things that candidates rarely are told, but that are barriers to their success:

*Grooming and/or hygiene: Neatness, tidiness, appropriate attire, cleanliness, nothing that is distracting to others. *Quirks or habits that people find irritating or distracting: Mannerisms, habitual behaviors, oddities, anything that someone has “jokingly” hinted about. *Interpersonal style: Abrupt, uncaring, unhappy acting, intimidated or intimidating, excessively introverted or extroverted, blames others or makes excuses for others gossips or allows gossip to continue.

*Judgment: Acts without getting input, fails to provide guidance or leadership, often makes the wrong decision when there are options.*Specific accomplishments: Some people, especially in acting positions, merely don’t let things get worse. Others do something positive. It isn’t always possible to have a list of specific accomplishments to point to, but if you do, listing those can be very helpful in your discussions.

*Reputation: Viewed as not committed to the job, viewed as unfriendly, viewed as vengeful or angry, viewed as behaving inappropriately in some way. One’s reputation may not be accurate and it may be unfair, but it can have a lot to do with success in a supervisory or managerial position. Interpersonal issues are especially important if you’re seeking a supervisory or managerial role. Employees are very prone to going to higher levels and voicing their concerns before selections are made.

*Communication style: Disruptive, non-communicative, distracting components, unclear.

If none of those things are present and if you are assured by several others who you respect that you would be welcomed as a manager and are viewed as credible and a valuable member of the organization, that could give you the reinforcement and support you need to push this matter further. You may not be able to show bias about your promotion and reprisal based on the complaint you made eight years ago. But, you may have substantial evidence that the process is not fair, no matter what reason there is for that situation.

If you have the time and wish to do so, let us know what happens. We’ll be interested, of course, and wishing you the best.

Tina Lewis Rowe Ask the Workplace Doctors