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It is lawful to pass over, a more than qualified single mother with a 5:15pm daycare pick up time, for promotions?

San Diego, CA |

I have worked for a little bit over a 3 year old grassroots "human rights" nonprofit for 2 1/2 years. I was a trained manager with 22 employees at a MAC counter for Nordstrom for 5 years prior. I have. Built their website/media dept for free, and helped in about every aspect of growing the organization, while watching the new young & inexperienced staff pass right by me in promotions to Assistant Director & Director because of my limitation to not work past 5:15pm, due to daycare, and not work unpaid overtime. This last time, I applied I was passed up by a girl with no management experience and she was supposed to be written up 2 months before for drug abuse on the job. Leadership backed out the day off because of personal friendships. My schedule allows me to work 40+ hrs/week.

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Best Answer

Your sense of injustice and unfairness is certainly understandable. Only limited issues can be identified and discussed in this forum, and it may serve you to consult with a local employment attorney about your potential rights and options. Mika Spencer is very very skilled and she is in your area.

In general, competing demands and limitations on your schedule that limit your availability to your employer is a legitimate criteria for the employer's decisions about assignments and promotions. Child-care responsibilities are not recognized and treated as the special circumstances that they are in this country as is common in some other cultures. "Single parent" is not a protected classification.Many would urge that it should be.

Be careful about assumptions about the standards for "qualified" as used in employment and promotional contexts. In the private sector, the determination of qualifications for any position -- an entry level one or a promotional position -- is largely left up to the employer. The employer need not utilize experience, education, seniority, or other job-related criteria in determining the characteristics to be sought in the successful hire or promotional candidate. Favoritism to family and friends, qualities such as people skills and versatility, even the willingness to participate on the employer's bowling team, are all lawful employment and promotional standards. The law prohibits the use of criteria that are unlawful discrimination, such as race, religion,, gender, etc. But the law does not impose specific qualifications, nor dictate to the employer the measures for best or most qualified.

The recently promoted co-worker with no management experience must have had some other qualities that the employer found important and valuable.

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Ms. McCall has given a very wise response. I would simply add that under the state and federal anti-discrimination statutory schemes, there is something called gender-plus discrimination that could apply if the facts aligned in a certain manner. While child care responsibilities are not a protected class of people under those statutes, if you as a mother have such responsibilities, but men in your organization have similar responsibilities and still get the promotions, you would have a gender plus childcare discrimination situation. Of course, your post provides no information on this, but if there are men who are being treated differently with regard to childcare responsibilities, you should locate and consult with an employment law attorney. I agree that Marilyn Spencer would be a great choice in your area.

Good luck to you.

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In addition to the helpful guidance above, you also would need to likely prove that you were passed on promotions because of any protected activity or status. At a minimum, you would want to show that you sought promotions or sought the higher positions for which you were passed on possible promotions. Contact a local employment law attorney for further guidance. Most offer free consultations, so don't be afraid to ask. Good luck.

Any post of discussion above is general in nature and is not intended to and should not be construed as legal advice. Furthermore, the above posting does not create or establish any attorney-client relationship. Contact an attorney as soon as possible to discuss your legal options. [John D. Wu is licensed to practice law before all California federal and state courts]