‘No vacancy’ is no defense in promotion lawsuit

Can an employer be sued for not promoting someone, even if there’s no vacancy in the job to which she wants to be promoted?

Maybe, according to a federal appeals court in Washington, D.C.

Janean Chambers was a blind black woman who worked for the Department of Health and Human Services. She was at a GS-9 pay grade and wanted to be promoted to a GS-11 job.

Since the only open GS-11 jobs were in a different division, and she didn’t want to switch, she instead spent four years trying to get the Department to create a new GS-11 job with her current responsibilities.

Her boss thought highly of her and supported her, but she was ultimately turned down for budget reasons. However, during this period the Department created three new positions in order to promote white and non-disabled employees from a GS-14 to a GS-15 pay grade.

Janean sued for discrimination.

In the end, she lost. The court said that Janean’s supervisor did everything possible to secure a promotion for her, and there was no evidence of any race or disability discrimination.

However, the court noted that the mere fact that there was no vacancy in the job to which Janean applied – and in fact, the job she wanted didn’t even exist – wasn’t enough to prevent her from suing, or to prevent other employees from suing if they could prove discrimination.

According to the court, businesses create new positions all the time, and often do so precisely because they want to promote someone. If an employer could get out of a discrimination lawsuit simply by saying there was “no vacancy,” then businesses could simply wait to create a new job until they want to promote a white employee, and never create a new job for a black employee.