Passed over for a promotion? These reasons are illegal

Been passed over for promotion? Seeing your colleagues get promoted while you’ve been left behind will be demoralizing for anyone. Employers may come up with reasons such as ‘insufficient interpersonal skills’, ‘lacking vision’, ‘insufficient performance’, or ‘creating a poisonous work environment’ to justify overlooking you for promotion.

From the point of view of the employee, there can be no greater injustice. However, an employer may have valid reasons for skipping someone for promotion.

In this article we are looking at ‘reasons’ that are illegal for passing over someone for promotion. We also discuss what you should do if you have been overlooked for a promotion, possibly unfairly.

 

Did you know more than 75% of human rights claims for discrimination come from the workplace.

 

Is it illegal for you to be passed over for promotion?

You are not guaranteed a promotion at work. However, if you have been passed over for promotion repeatedly without obvious cause or reason, it may be for illegal reasons.

Canada and Ontario employment laws strictly prohibit discrimination at the workplace. This applies to discriminatory reasons for not promoting an employee too. Some illegal (wrongful) reasons for not promoting someone include:

• Discrimination based on race, ethnicity, nationality, religion, age, gender, sexual orientation
• Pregnancy or maternity leave
• Favouritism and nepotism
• Reprisal
• Medical condition or disability

 

What to do if you get passed over for a promotion?

The first step is not to make an emotional response to the situation. Take a day or two to process what has happened. Make sure you keep a record of any formal communication and note anything your employer or supervisor says to you. When you are ready, you should:

• Understand that not being promoted is not a sign of failure
• Ask your boss why you have been overlooked for promotion
• Ask how you can improve or work differently
• Speak to a Toronto employment lawyer if you feel you have not been promoted for illegal reasons

As an employee you know that every company or organization is different. If you feel that your being overlooked stems from workplace harassment (sexual, bullying, abuse) you need to consult a lawyer.

 

Not being promoted feels like a demotion

Has your entire team or department been promoted but you have not? Are you now junior to people who were at the same level as you? If not being promoted means you have effectively been demoted, that is constructive dismissal.

By not promoting you, your employer is creating a situation where you will be compelled to leave. This is illegal. Find out what constitutes constructive dismissal and if you are being subjected to this treatment.

 

How to ask why you haven’t been promoted?

First, you should ask a supervisor or manager who will actually know why you have been overlooked. Speaking to colleagues will not get you answers only rumours.

Be upfront about why you have not been promoted, without being confrontational. Any employee, even your manager, understands that promotion is a reasonable reward that every employee expects for the good work they put in.

Do not be rude or act entitled. Your manager or supervisor may not be the decision maker. Crude behaviour, rude language and swearing will only tell them that you were not right for promotion.

 

Read more about equality in the workplace

How equal pay law works in Canada | Understanding ‘employee misconduct’ | Facebook Ads promote hiring discrimination

 

Have you been denied promotion for not being a ‘people person’?

‘Lack of interpersonal skills’, ‘not a team player’, or ‘not enough of a people person’ are often reasons cited when you are denied a promotion. For any employee, they can be extremely frustrating statements. The criticism can sting personally and is vague about how you can improve.

Sometimes, it may be true that you need to develop your teamwork and team building skills. If your job requires special people-handling skills, then your employer would be right to promote people who are better equipped.

However, ‘not a people person’ can also be code for ‘the boss just doesn’t like you’. In such arbitrary favouritism, you may very well have legal options available to you.

 

Did your employer promise a promotion and then not give it?

Sometimes a manager or supervisor will tell you that you are going to be promoted. Weeks and months pass and it never happens. Can you sue for that? It depends on the unique circumstances. A court will look at various factors, including:

• Under what circumstances were you offered the promotion?
• What was the intention of the statement offering promotion?
• Were your colleagues and peers present when it was offered?
• Was the promotion made in good faith?

If you are wondering if you are owed compensation, you need to speak to a Toronto employment lawyer.

 

Is it illegal for someone receiving short term and long term disability benefits to not be promoted?

If you are on short term or long term disability leave, the employer is under no obligation to promote you. For instance, if you were a ‘Junior Manager’ at the time of your leave, you cannot demand the same promotion your peers may have got.

If you are unable to resume your previous responsibilities due to your disability despite accommodations, your employer can reassign you to a more appropriate role. This too does not have to be a ‘promotion’, and can be in an equivalent or lower position.

 

Can you sue for not being promoted?

Employees have sued employers successfully for not being promoted. Some reasons why you may be able to sue your employer include:

• Illegal reasons such as discrimination
• Workplace harassment or bullying
• Unequal pay or treatment at the workplace
• ‘Constructive demotion’
• Giving false or ‘framed’ reasons to deny promotion

 

Will you get damages/compensation for not being promoted?

Damages and compensation for not being promoted depend entirely on the circumstances. If there is illegal conduct involved, courts will order your employer to compensate for lack of earnings. If the lack of promotion was actually constructive dismissal, you may be granted compensation for lost pay. An employment suit may also get you damages for emotional distress, professional harm and the humiliation you have suffered.

However, courts will need to be shown actual damage or loss that you suffered. This can be loss of income if withholding promotion was wrongful; it can also be loss of career opportunities and earning potential. Even then, the employee must show attempts to mitigate their loss; for instance, by looking for alternate employment.

 

Speak to a Toronto employment lawyer about your promotion

If you have been passed over for promotion, speak to Soni Law. There is a possibility that your employer is singling you out or discriminating against you. We will help you understand your situation and guide you with mature advice. Our lawyers are experienced at representing employers and employees, and we can help you reach the outcome you want.