Women should not have to meet higher standards than men to be promoted, a recent Equal Employment Opportunity Commission (EEOC) lawsuit suggested. Employees instead should be evaluated for promotion by objective criteria applied equally to all workers.

Those criteria might include job performance, tenure with the company and skills, noted Kofi Semenya, an attorney with Isaac Wiles in Columbus, Ohio.

Intangibles may be factored in as well, such as how employees considered for promotion get along with others, noted Myrna Maysonet, an attorney with Greenspoon Marder in Orlando, Fla. But she said that if employers hope to win cases challenging denials of promotion, they must use the same objective criteria with everyone.

“You want to try and give everyone an equal shot and hopefully wind up with the most skilled person,” she said.

Mentorship Program Requirement

The EEOC alleged in an Aug. 20 lawsuit brought against Ferman Management Services in Tampa Bay, Fla., that Ferman failed to promote Virginia Duncan from sales manager to general manager at one of its motorcycle dealerships because she is a woman.

Ferman required Duncan to participate in a mentorship program to be eligible for promotion but did not require the same of nine different men promoted at Ferman’s dealerships from March 2012 to January 2015, according to the EEOC. As part of the mentorship program, Duncan had to prepare book reports and write letters of appreciation to co-workers, the complaint alleges. She also allegedly had to meet regularly with Ferman’s vice president, who the EEOC said often rescheduled or failed to appear for their meetings.

The EEOC sued under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex. “Although Title VII was passed more than 50 years ago, women nationwide continue to be passed over for promotion because of their sex,” said Robert Weisberg, EEOC regional attorney for the Miami district office.

Ferman did not respond to requests for comment.

Other Failure-to-Promote Claims

Duncan isn’t alone in her allegations. In fiscal year 2017, the EEOC received 1,162 failure-to-promote charges on the basis of sex.

On Aug. 22, the EEOC settled a claim with a Coral Gables, Fla., automobile dealership, AutoNation Chevrolet Coral Gables, that agreed to pay $150,000 to a former assistant parts manager to resolve a sex-discrimination lawsuit. A woman who was an assistant parts manager for 10 years was allegedly barred from applying for a vacant parts manager position and was purportedly told she was the most qualified candidate but the position “needed a man.”

Under the settlement, the dealership’s general manager must deliver a message in person to the workforce regarding the importance of equal employment opportunity and diversity, including sex diversity in hiring and promotion. The settlement also requires annual training for three years covering nondiscriminatory recruiting, interviewing and hiring.

AutoNation Chevrolet Coral Gables and AutoNation declined to comment.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Common Objective Criteria

It’s common for employers to promote people who’ve earned high marks for performance in their current jobs, Semenya said. But Maysonet noted that sometimes high-performing workers make terrible managers. “When you’re a manager, the train of thought has to be completely different—not just thinking about you but about the team,” she said. Another management skill might be the ability to write and communicate, which can be tested objectively, she noted.

Requiring someone to pass a class on management is another good way to see if he or she has what it takes to be a manager, Maysonet noted.

Semenya recommended that employers require workers to have been with the company at least one year before promoting them. That ensures that the candidates for promotion are familiar with the company’s work processes, he said.

Mark Kluger, an attorney with Kluger Healey in Florham Park, N.J., cautioned, “An employee with less time at the company but maybe more or better experience at a previous job might be promoted over a longer-term employee, who will no doubt feel that the promotion is unjust.”