Can my boss promise a job to someone before posting it?

Question

I work in California. I'm due for a promotion for a supervisory role. Before the more senior employees were considered and one was promoted. I got word that my manager promised the job to my coworker before he even posted the job for interviews.

There is a history of favoritism at my job. A coworker and I competed for a supervisor job and that's where my manager promised the job to him.

However an even more senior Caucasian applicant got that the job. Since my manager broke his promise to my coworker now he has promised him this other job that again we are both competing for.

My manager had told me that I was a "front runner" for the other job during my interview, knowing full well that he had already promised the job to my coworker. To me that seems dishonest and deceitful.

I'm a minority while my coworker is Caucasian and the manager is Caucasian as well. I'm wondering if this is all murky from a legal stand point. During my interview I'm going to ask some questions to see if the manager is dishonest about it. I'll ask him what my chances are or something along that.

Answer 1

There are two kinds of evidence for discrimination. The primary evidence is direct, that is, statements by an employer, for example "We need to make sure not to hire a ___ for this position". The act of hiring a person that has a certain demographic property is never evidence for discrimination, because discrimination law treats all races and religions (etc) the same, so hiring a European is not intrinsically discriminatory, nor is hiring an African or Asian. Discrimination is also not defined in terms of the sameness or difference of an employee and a supervisor. Another possibility w.r.t. a discrimination claim is demonstrating a discriminatory pattern. However, the law does not demand exact proportional representation of all protected demographic classes. It is possible that certain circumstances would be compelling enough that illegal discrimination could be established, but this would require showing a pattern, and would not be useful in an individual action.

There is no law requiring employers to be up-front about hiring decisions. There is also no law requiring posting a job (I assume this is not a government job), and no law requiring consideration of more than on candidate. It might be contrary to company policy. This is not murky from a legal perspective, even if it is scummy from an HR perspective.

Answer 2

Nothing here demonstrates that you were rejected because of your minority status specifically, and you're going to have to demonstrate that it was likely the only reason for your rejection. I would still argue that you should ask about your chances, but ask in a way that allows the manager to give you constructive criticism. Typically at the end of the interview, ask for feedback like "If I am not selected for this position, what can I do to improve myself so I can become a desirable candidate for a similar position next time."

If you feel like this is because of your performance, I would consult with an employment attorney or a few to see if there is a case, as they can help you assess based on measures they would need to demonstrate at court. Also discuss promotions with other employees in the buisness (and not just with other minorities). Again, I'd look for strong indicators that your job performance had no basis on why you were not selected, as well as experience or time in role. One possible down side is that while most employment discrimination has retaliation as a form of discriminated practices (i.e. you're fired for bringing to issue some kind of bad practice or problem in good faith and following proper procedures and legal channels), but it can be hard to prove and if you decide to look to another company, it might be bad to have a reputation for making charges and not having evidence to back it up.