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DENIED PROMOTION :( Can I file a lawsuit under title VII civil rights act and ADA??

Newark, NJ |

I have been employed for with the same job for almost nine years.6 management positions were created in my deparment . 4 internal candidates with have less seniority AND have no small children were promoted . All my evaluations were above average and never received disciplinary action. I am a single Afr-Am mother who has a 2 year old with a disability and have fmla. Another Afr-Am female candidate also has a baby with a disability and fmla. My director called me into her office one day in regard to the job promotion and brought up my baby and she stated I know you have to leave work early to pick your baby up" I informed her that I NEVER had to leave early to pick my child up for childcare issues only when she was sick due to FMLA . I was denied a promotion so was the other lady

Attorney Answers 2


  1. I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.

    The answer to your question will turn on specific facts. The Avvo board is not really set up to handle the kind of detailed analysis that is needed in your situation. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. Your employer or whomever you are in a dispute with can read everything written here.

    As a general response: employment discrimination is against the public policy of the United States. Many people misunderstand the meaning of employment discrimination. “Discrimination” does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated.

    The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Under federal law, public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination. There is no federal protection for sexual orientation discrimination, but many states provide this protection.

    Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, and a few more rights protected by statute.

    An employer cannot change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

    There are various ways to enforce these rights, depending on the particular public policy involved.

    For more information on employment discrimination, please see my Avvo guide on this subject: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--federal-law?published=true.

    You may also be interested in my guides to the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment and to the FMLA: http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


  2. Your employer may not deny you a promotion based on your race or the fact that you have small children. His comment is a red flag. The fact that someone else was also passed up, who is in the same situation as you, is also suspect. More factors will determine whether or not you actually have a case. You would benefit from a formal consultation, to further explore the matter.

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