Diversity in Hiring, ‘Reverse’ Discrimination, and Discrimination Law in New York

In late October, a Forbes headline asked the provocative question “Do DEI Initiatives Lead to Reverse Discrimination?” Regardless of one’s views on diversity, equity, and inclusion initiatives, it’s important to understand that the law in New York — federal, state, and city — does not differentiate between so-called reverse discrimination and more traditional forms of discrimination. The law prohibits all forms of racial discrimination, regardless of the racial makeup of those who received an employment benefit and those who incurred an adverse action. If you believe you encountered race discrimination at work — regardless of what race you are — you should contact an experienced New York City race discrimination lawyer to discuss your case.

This issue of alleged anti-white discrimination took center stage in a recent case from upstate.

D.F. and M.S., two white captains within the New York State Department of Environmental Conservation’s police force, applied for the position of Director of Law Enforcement. Under New York civil service law, all candidates for the director position were required to pass a written test.

M.S. passed the test with the highest overall score. D.F. also passed, tying two other applicants for second place. B.R., a Black man and a major in the DEC police force (meaning that D.F. and M.S. outranked him,) took the test and failed. Nevertheless, the department appointed B.R. as acting director (a role that did not require a passing test score.)

The department subsequently asked the Civil Service Commission to remove the test from the requirements for the director job. The commission granted the request and, as a result, the department selected B.R. for the permanent director role.

The captains subsequently sued, alleging that the department engaged in race discrimination in violation of Title VII. While the trial court granted a department request to dismiss the case, the Second Circuit Court of Appeals reversed that decision, thereby allowing the captains to continue the pursuit of their claims.

The appeals court, after looking at the parties’ assertions, concluded that the captains’ case “easily” demonstrated sufficient discriminatory intent on the employer’s part to overcome a motion to dismiss. Specifically, the appeals court highlighted the fact that the two white candidates outranked B.R. and allegedly worked in “units with greater responsibilities” than B.R. They also achieved the highest scores on a test designed to measure aptitude for the director job — a test that B.R. failed.

The captains also alleged that the department “openly acknowledged” discriminatory intent by moving to remove the test requirement in order to pull in a “more diverse pool of applicants.” (All of the applicants who posted passing test scores were white.)

Graded Tests/Assessments and Your Race Discrimination Case

The appeals court’s decision in favor of these two captains is a reminder that in discrimination cases where test scores or other graded assessment metrics are a vital part of your case, your employer’s removal of that particular metric as a job requirement does not automatically render that evidence irrelevant to your Title VII discrimination case. The results remain potential admissible pieces of factual evidence whose relevance generally remains a factual question for a jury to decide.

As the Second Circuit court explained, the employer’s “abandonment of the test does not suggest it was a worthless metric of evaluation or even a bad one.” In instances of wide gaps between the assessment results of the successful candidate and the plaintiffs — as was the case in the captains’ lawsuit — the successful applicant’s low score “might still be a substantial strike against his hiring even if the test retained only a modest connection to potential job performance.”

Furthermore, the court rejected the employer’s argument that the plaintiffs and B.R. were not similarly situated. A determination of “sufficient similarity” is often critical to a discrimination case. One effective way to establish an inference of discrimination is to show that you (and others inside your protected group) were treated more poorly than someone who was sufficiently similar to you except that they were outside your class. If you and that someone (known as a “comparator”) aren’t sufficiently similar, then there can be no inference of discrimination.

Whether or not employees are sufficiently similarly situated “ordinarily presents a question of fact for the jury,” according to the Second Circuit and, based on the captains’ evidence and the short duration of B.R.’s tenure as acting director, a jury was who should make the similarity determination in this case.

Race discrimination cases can be challenging, as your employer will almost never admit that racial animus was the basis for its action and will almost always have a separate, ostensibly legitimate ground for doing what it did. The knowledgeable New York race discrimination attorneys at Phillips & Associates are here to help you take on those challenges and unearth the proof necessary to reveal your employer’s true motivations… and help you recover compensation in the process. To find out more, contact us online or at (866) 229-9441 to set up a free and confidential consultation today.

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