Why it matters

The D.C. Circuit Court of Appeals recently ruled that the denial of a promotion was recognizable as an adverse employment action even where no vacancy existed. A longtime, highly rated employee approached her supervisor requesting a promotion to a higher pay grade in 2007. No available positions existed so she tried over a period of four years to create a new position with higher pay and the same responsibilities. When that didn't work, she filed suit against her employer alleging discrimination on the basis of race and disability. Although no new position was created for her, three new roles were created for white workers without vision impairments, she argued. A federal court judge agreed with the employer that the denial of a promotion did not constitute an adverse action because the desired job did not exist. But the federal appellate panel rejected this position, writing that "no such categorical rule" existed and to establish it would create "an unacceptable loophole in our antidiscrimination law." However, the panel upheld the summary judgment ruling in favor of the employer because the plaintiff failed to tie the promotion denial to her race or disability.

Detailed discussion

A legally blind, African-American woman, Janean Chambers began working for the Department of Health and Human Services (HHS) in 1989. In 2006, she was promoted to an analyst position with a GS-9 pay grade. The next year, she became eligible to apply for GS-11 positions and spoke to her supervisor about her next promotion.

The supervisor explained that her current position was capped at the GS-9 level so she had two options for promotion: apply for an available GS-11 position in the agency (which might mean she would have to switch divisions, an option she was not interested in) or request a "desk audit" to demonstrate her current duties warranted a higher pay grade.

Chambers elected to take a third path, pursuing the creation of a higher-graded vacancy with the same responsibilities as her current job. Her supervisor told her he supported such a promotion but explained he lacked the authority to create a new position.

After four years and no movement, Chambers filed a complaint with the equal employment opportunity office at HHS alleging that she had been denied a promotion because of her race and disability. She argued that although she had been told budgetary constraints prevented the creation of her desired position, the agency had created positions to promote three white, sighted department heads from a GS-14 to GS-15 pay grade.

HHS responded with a desk audit that concluded Chambers' job was properly classified at the GS-9 level. Chambers then filed suit in federal court, alleging violations of Title VII and the Rehabilitation Act. A district court judge granted summary judgment to HHS, ruling that an employee could not suffer a cognizable adverse employment action when the position she sought did not exist and when her supervisor lacked the authority to create it. Chambers appealed.

While the court ultimately affirmed summary judgment in favor of the employer, it took pains to make clear that an adverse employment action can occur even if a vacancy for the desired position does not exist.

The D.C. Circuit has recognized that claims alleging an unlawful denial of promotion come in at least two forms, the court said: "the denial of a promotion to a vacant position and the denial of an increase in pay or grade. The government's argument recognizes the former, but overlooks the latter. Precedent makes clear that employees who pursue, and are denied, pay or grade increases can still suffer a materially adverse employment action. Chambers advances this type of claim, and she did not need to identify an available vacancy to survive summary judgment."

Requiring that a vacant position exist would create "an unacceptable loophole in our antidiscrimination law," the panel wrote. "A categorical rule requiring employees to always identify a vacancy before advancing their denial of promotion claim would permit employers to systematically pass over qualified candidates because of their race or disability."

For example, an agency could limit formal promotional opportunities while allowing supervisors to promote subordinates by requesting the creation of vacancies tailored to their particular qualifications, the court suggested, and a supervisor could request vacancies only for white subordinates because of his animus toward African-Americans.

"Allowing employers to escape liability for this kind of unlawful workplace conduct would exalt form over substance by ignoring the reality that employers promote employees in a variety of ways—both formal and informal," the court said. "Courts have long avoided such anomalous results in the employment discrimination context by tailoring the evidence needed to survive summary judgment to the particular circumstances of the plaintiff's claim."

Following that lead, the panel held that "[a]s a matter of law, at least where a manager regularly requests and receives upgraded vacancies that are earmarked for his subordinates, his decision not to engage in that process because of an employee's disability or race can be an adverse employment action under our case law."

Despite this ruling, the court said Chambers failed to demonstrate that she was denied her promotion because of her race or disability. Although she tried to pin the unlawful discrimination on her supervisor's failure to create the position she desired, the record was supported with "ample evidence" that he not only made the request, he supported Chambers' career development with high performance ratings, approval to receive training to increase her opportunities, and encouragement to pursue a desk audit or other promotional possibilities.

While the plaintiff pointed to three other positions that were created during the relevant time period, the supervisor's superiors exercised their own initiative in creating the new positions, the panel found, and she failed to offer evidence that HHS ever granted any supervisory requests like the one Chambers asked her supervisor to make.

To read the opinion in Chambers v. Burwell, click here.