Can I go off of past practice?

[asp247]

What is the name of your state (only U.S. law)? California

I've read a lot of subjects on labor laws and understand that a company can hire and fire for just about any reason or no reason at all.

My question is, can I go off of past practice if a company has a history of promoting and demoting without any application process?

My position (along with someone else at the same level and doing the same thing) were eliminated. My company had 2 supervisor positions (both are exactly the same) open doing what we currently did, one of the positions was given to the other person without them needing to apply for it and I was told that if I wanted to keep my job I would need to apply for the second spot. I did and was turned down. In the past (resent and far) they would give a supervisor the option of taking a lower position if their current spot was eliminated or they had poor performance. I am an exception to the rule. I spoke with my HR department and it was escalated to the corporate level and they just turned a blind eye to it. The company hand book is quite clear about everyone being treated equally even though that is not the case.What is the name of your state (only U.S. law)?

[cbg]

Strictly on the basis of what you have posted, you are out of luck. The law does NOT require that all employees be treated exactly equally; it requires only that any difference in treatment not be based in a characteristic protected by law (race, religion, national origin etc.).

[KJHOOK13]

Do you feel the disparate treatment was because of your race, gender, religtion, handicap, etc?

[mlane58]

Do you feel the disparate treatment was because of your race, gender, religtion, handicap, etc?

YO! everyone is in a protected class. Being treated equally as the OP suggests isn't the same as being treated illegally.

[cbg]

Everyone in the world is in at least three protected classes. We all have a race, a gender and a national origin.

The poster would need a valid and supportable reason to believe that but for his (fill in with a protected characteristic here), he would have received the position. Without knowing who DID get the position and what their situation is, it's far too early to assume that there was illegal discrimination involved. What if there were other positions eliminated as well as these the poster and his friend? If there were several positions eliminated and only two positions available, SOMEONE was going to be disappointed.

[asp247]

Thanks for the quick reply everyone!

If I bring race into it, the guy that was given one of the positions (without applying for it) is African American and I am white. After the application process was over the second position was given to someone else who is younger but also white so that's why discrimination would be hard to prove.

I know it sucks when a company does things in this fashion but wanted to more opinions as to not shoot myself in the foot.

[cbg]

If the other person who was given the position is the same race as you, what makes you think it was discrimination at all?

[asp247]

I knew discrimination would be a far fetched idea but was more curious if they can do one thing with one person and change their practice when it comes to someone else.

[cbg]

They can. As long as they do not violate Title VII.

[KJHOOK13]

Ok-- if I have understood this correctly, here is what I have discerned from OP's story:

1) Several positions eliminated; two open positions remain which will be back-filled internally;

2) One person was given one of the open positions without benefit of applying for it or interviewing for it which OP stated is not company policy. This person happens to be African American.

3) Second open position had two applicants: OP and another white candidate. It appears that both of these candidates applied/interviewed; however OP never heard anything back, and the other white internal candidate was hired to fill that position.

Tell me how this does not constitute violation of Title VII when the 1 open position was automatically filled with an African American candidate that did not officially apply; and the remaining two white candidates were required to put in for them per normal company policy?

As cbg indicated; everyone fits into one of the protected groups. It sounds to me as if OP has a case of disparate treatment if the only African-American candidate was handed the position versus the two white candidates being required to go through the application/interview process.

[ecmst12]

What makes you think that the other candidate was "handed" the position or that it was BECAUSE of his race?

[cbg]

There is no evidence in any of the posts that the race of the candidate had anything to do with it. It is not enough that the successful candidate was of a different race; the disparate treatment has to be BECAUSE of their race.

Not because the other employee had a longer tenure in the company; not because the other employee had a specific skill set that the employer needed; not because the employer knew of changes that were coming down the line that would make the other employee a better fit; not because the other employee's father plays golf with the boss; not because the other employee was being paid less and therefore would cost the company less money than the other two; but BECAUSE of their race.

[KJHOOK13]

Well that says it all I guess: the OP has to establish that this "deviation" from past practice (or company policy if there is a handbook dealing with an internal job posting policy) was deliberately taken by the company based on race and nothing else. OP admits the case for discrimination was far-fetched. So it doesn't seem that OP really believes it was preferential treatment based on race.