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What does proving “substantially more qualified” require?


Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against discrimination based on race, color, religion, sex, and national origin. There are many different bases for bringing a claim under Title VII, including, but not limited to, discriminatory termination, discriminatory failure to promote, discriminatory failure to hire, and retaliation. Each discriminatory basis requires that different elements be met in order to prove the claim. For example, in establishing a discrimination claim based on a failure to promote, an employee must prove the following elements: (1) the employee is a member of a protected class; (2) that the employee was qualified and applied for the promotion; (3) that the employee was rejected despite these qualifications; and (4) that the employer promoted an employee that was less qualified than the employee bringing suit. Once the employee satisfies this burden, the employer must establish that it rejected the employee for a legitimate, non-discriminatory reason. If the employer meets this burden, the employee must show that the employer’s reason is merely a “pretext” for its actual discriminatory reasons.

What does pretext require in the failure to promote context?

First, to establish pretext in a failure to promote case, the employee must have sufficient evidence to prove that he was objectively more qualified than the selected employee. The employee cannot merely state that he was more qualified, but rather must provide actual evidence to support his position. The law states that the employee cannot establish pretext by “questioning the wisdom of the employer’s reasons.” Moreover, the courts are not in a position to determine whether the employer’s promotional decisions were “prudent or fair,” nor is it the jury’s responsibility. As some courts have indicated, they are not human resource personnel. Instead, it is the court’s obligation to determine if the employer was in fact motivated by a discriminatory animus.

What is evidence of pretext for a failure to promote claim?

In order to establish that the employer’s failure to hire decision was motivated by a discriminatory animus, the employee must establish that he was “substantially” more qualified than the selected applicant. To meet this burden, the employee must establish that the disparities between him and the selected applicant are so apparent as to “virtually jump off the page and slap you in the face.” In other words, the employee must be so much more qualified than the selected applicant that no reasonable person could have selected the applicant over the employee. Courts have found that evidence showing that the employee had more relevant experience, higher education, more applicable skills, and/or longer service with the company, can be sufficient evidence to establish pretext in a failure to promote the case. Notably, the evidence offered to establish these things must be relevant to the position the employee applied for. If the evidence regarding his qualifications is not relevant to the position in question, then the court will likely find that the employee has not sufficiently met the pretext burden. If the court finds that the employee was equally or less qualified than the selected applicant based on the employee’s proffered evidence, the court will likely dismiss the employee’s claim and find in favor of the employer.

If you think you may have been rejected for a promotion based on your employer’s discriminatory practices, ask yourself “what makes me stand out against the applicant such that no reasonable person would be able to select that person over me?” If you are able to establish that you had more relevant experience, higher education, more skills, and/or longer service, then you may be able to assert a claim for discriminatory failure to promote.

If you feel your rights under Title VII have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.

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