Is it Gender Discrimination if a Less Qualified Person Gets a Promotion

My question involves labor and employment law for the state of: Vermont

Recently several people were fired in my organization including my supervisor. Meanwhile, they pulled in an interim supervisor who is well known and qualified, no problem so far. However, without letting staff know, the higher ups created another interim position to "support" our interim director. They plucked a part time crisis screener (male) out of a pool of per-diem screeners to fill the position. I feel completely jilted by the company. I have a degree in mental health, have worked full time for the company in three of its divisions, have done 100's of crisis screenings including in courtrooms where the issue was that resulted in several people being fired. I have a relationship with community organizations we work with and extensive knowledge of the overall picture of how crisis fits into a community. The person they chose has a degree in mediation, has never done a court screening, has a fraction of the experience I do working in crisis and has never worked full-time for the company. As a matter of fact, he has to ask me all the answers. I spoke up to the organization and basically they are ignoring me. Can I file a discrimination suit? I can't see why he would get chosen for that job, when he is so not qualified for it except that he is a man. I feel they are "grooming" him for the Crisis Coordinator Position. Well, wouldn't we all love to have that opportunity.

Based on this information alone, I don't think you have a case. Have you asked one of the higher ups why this person was chosen to do this interim job? What was the answer?

Agreed. On the facts provided, you'll have a hard time supporting a claim that the SOLE reason he was put into the position was his gender.

Legally, you can certainly file a discrimination charge asserting gender discrimination in this promotion decision. (You may want to Google “McDonnell Douglas” for more understanding on prima facie, rebuttal and pretext phases of a disparate treatment case.) Based on your post, you can apparently make out a prima facie gender discrimination charge: You are female; your employer unilaterally promoted a male colleague; and you have objectively greater qualifications for the position than your male coworker.

However, filing a disparate treatment charge or otherwise commencing a case is not the same as winning a case. In order to ultimately prevail on such a claim, you will have to establish the rebuttal explanation the employer advances is not worthy of credence and is indeed a pretext for discriminatory animus. Without knowing at this juncture what the employer’s rebuttal explanation will be it is difficult, if not impossible, to assess your prospects of prevailing.

With that said, I would recommend you also weigh the practical impact of commencing such an action. In sum, is this a career-related fight you want to wage?

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Quoting ESteele

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Based on your post, you can apparently make out a prima facie gender discrimination charge: You are female; your employer unilaterally promoted a male colleague; and you have objectively greater qualifications for the position than your male coworker.

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I don't think that based on the post there is enough information to support this statement. The OP didn't offer any explanation on the qualifications that the interim support position requires. If it requires a mediation degree, then the OP is not a qualified candidate.

If the employer required a mediation degree and chose a candidate with such a degree, then the OP and other hopefuls lacking such a degree would indeed find it difficult, if not impossible, to argue disparate treatment.

HOWEVER, there is nothing in the OP’s post to suggest that this newly minted supervisory position required a mediation degree. Instead, OP suggests that the employer focuses on mental health matters overall, and that she has a degree in mental health and has far more extensive experience with the organization. Based on this limited information, she would appear to have sufficient basis to file a prima facie charge of discrimination.

The OP’s fundamental question, in my opinion, is whether she can “file a discrimination suit.” If her employer hired a less qualified male candidate, then she can undoubtedly file a discrimination suit. Indeed, depending on how the facts actually develop, she could potentially prevail on such a suit either through settlement or at trial.