There are two important reasons why denial of promotion cases based on claimed discrimination are generally harder to prove and win and are less attractive financially and practically.
(a) Limited damages. Both economic and non-economic (emotional distress) damages in failure to promote cases are usually significant lower than in wrongful termination cases. The “value” of any employment case in large part depends on the lost wages. In a typical wrongful termination case, the employee can claim as damages past wage loss and also future wage loss if that employee has not yet found a (comparable employment). However, in a failure to promote case the lost wages are limited to the difference between what the employee earns and what he could and would have earned, had he gotten that promotion. Obviously, the emotional distress associated with losing a job altogether is easier to prove that the same distress associated with being denied a promotion.
(b) Failure to promote cases are harder to prove than wrongful termination cases. In a failure to promote case, the employer has an inherent advantage of being able to argue that someone else was promoted and not you for one of a hundred possible reasons. It’s almost always possible to show why one employee was selected and not the other. Even if you were denied a promotion despite being more qualified than the candidate who was promoted, the employer will likely be able to point at one or two specific details of that other employee’s experience or skills or qualities that make him superior, or simply argue that the other candidate seems to be a “better fit” for that management position because of his / her leadership skills. The employer doesn’t quite have that “luxury” in a wrongful termination case, especially where a specific reason for termination is articulated at the time of firing, and there are only so many stories an employer can make up to cover up the true reason for termination, if there is in fact some evidence that discrimination or retaliation were a factor in that termination. Also, the court / jury are more skeptical of discriminatory failure to promote cases, because there is a belief out there that if the employer really meant to discriminate against the employee who claims failure to promote, they would have just fired him or wouldn’t have hired him in the first place. This argument is effective all too often, even though it has significant flaws of its own. – The video below discusses several factors that would make a failure to promote case more compelling and worth pursuing as a case.