Suit claiming racial bias in hiring process to proceed
| DOI | http://doi.org/10.1002/nba.30748 |
| Date | 01 April 2020 |
| Published date | 01 April 2020 |
NONPROFIT BUSINESS ADVISOR APRIL 2020
10 © 2020 Wiley Periodicals, Inc., A Wiley Company • All rights reserved
DOI: 10.1002/nba
Employment Law
Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review
employment laws and their compliance efforts to avert similar issues.
Title VII
Suit claiming racial bias in hiring
process to proceed
The plaintiff was a black man who applied to be
an examiner at the New York State Ofce of the State
Comptroller.
After being rejected for the position, he led a suit
claiming violations of Title VII, alleging that a white
OSC employee who interviewed him for the job had: (1)
volunteered without any prompting that the position
was located in a “predominately white neighborhood”
and (2) expressed some surprise that the plaintiff wasn’t
Japanese because his surname was typically Japanese.
The defendant led a motion to dismiss.
The district court judge said comments made
during the hiring process by the interviewer could
sometimes be indicative of discriminatory animus.
He also explained that a court’s analysis of whether
a comment showed discriminatory intent required a
consideration of: (1) whether it was a decision-mak-
er who made the remark, (2) when the comment
was made in the employment decision process, (3)
whether a reasonable juror could view the remark as
discriminatory and (4) whether it was related to the
ultimate hiring decision.
OSC argued that the interviewer who allegedly
made the two comments to the plaintiff wasn’t the de-
cision-maker, and a consideration of the other factors
didn’t reect any discriminatory intent. It contended
that the interviewer wasn’t a decision-maker because:
(1) no allegations suggested that his assessment had
anything to do with the rejection of the plaintiff’s
employment application and (2) the reason for not
advancing the application was that someone else in
the organization had decided the plaintiff had sub-
mitted “a poor writing sample” and “a resume with
gaps in his employment history.”
EMPLOYEE WINS ➔ The judge acknowledged
that the alleged content of the white OSC interview-
er’s remarks alone wouldn’t indicate discriminatory
animus. However, he ruled that a sufcient inference
of such intent arose to justify allowing the suit to pro-
ceed because of the plaintiff ’s allegations concerning:
(1) who made the remarks, (2) when they were made
and (3) the context in which they were spoken.
He said there wasn’t any law standing for the
proposition that an interviewer who commented on
race must have a dispositive inuence over the hiring
process in order to be considered a decision-maker
in that process. He then ruled that the alleged OSC
interviewer was a decision-maker “of sorts,” because
he was purportedly one of only two individuals who
decided, largely based on that interview, to reject the
employment application. That context—together
with the fact that both comments were allegedly said
without an apparent job-related purpose or justica-
tion—nudged them in the judge’s mind over the line
from stray remarks to evidence of discrimination.
The judge explained the relevance of discrim-
ination-related remarks didn’t depend on their
offensiveness, but rather on their tendency to show
that the decision-maker was motivated by improper
assumptions or attitudes relating to a protected class.
[Adeniji v. New York State Ofce of the State
Comptroller, U.S. District Court for the Southern
District of New York, No. 18 Civ. 0761, 09/03/2019].
Retaliation
Judge rules for employee claiming
retaliatory ring
The plaintiff was a South Korean doctor who be-
gan working at the Oklahoma City VA hospital as a
radiation oncology doctor in March 2017.
All of the radiation therapists were white females.
According to the plaintiff, he started off on the job
by telling the therapists to speak up if they didn’t un-
derstand him, because English wasn’t his rst language.
According to the plaintiff, the therapists instead
made his work life difcult by saying he would have
to get used to sarcasm. He also claimed they refused
to: (1) say “Good morning,” (2) share food brought
in by patients and staff and (3) follow his instructions
about patient care.
The chief of medicine told the plaintiff in a June
meeting that the therapists had led complaints about
him and warned that he would be red if there were
more. The chief also purportedly said, “I can re
you at any time without reason because you are not
a U.S. citizen.”
When the plaintiff asked his supervisor the next
day about the nature of the therapists’ complaints, she
purportedly replied that he was disrupting their jobs,
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