A $1.35 Million Error... Discrimination, In Reverse

Written by Scott M. Wich

When making employment decisions, seasoned human resources managers are well-versed in avoiding adverse actions based on "traditional" protected classes. However, what if the affected employee is an American-born, White male? As recently demonstrated in the matter of Barella v. Village of Freeport, discrimination laws do not discriminate. An adverse employment action taken on the basis of a person's skin color, regardless of hue, can result in substantial liability.

Barella involved a 24-year veteran of and lieutenant with the Village of Freeport Police Department. He was a White, non-Hispanic male born in the United States. He and five other officers sat for an exam to qualify for the position of Chief of Police. The lieutenant and one other non-Hispanic, White male received the two highest scores. A Hispanic lieutenant within the police department was the third highest scorer.

Shortly after the exam, the Mayor of Freeport, an African-American, appointed the lower-scoring Hispanic lieutenant to the position of Deputy Chief. Promotions to the positions of Assistant Chief and Chief of Police followed, without even an interview for the higher-scoring lieutenant. In a public announcement of the final promotion, the mayor characterized the new chief as "the first Hispanic Chief of Police." The higher-scoring lieutenant complained of discriminatory treatment, noting that while he had advanced Masters and law degrees, the newly-appointed chief had not graduated from college. He also showed that the new chief had a history of inappropriate conduct towards other officers.

There was no evidence that the mayor had made any derogatory statements towards non-minorities. But there were multiple examples of the mayor replacing non-Hispanic, White employees with African-American and Hispanic employees of purportedly questionable qualifications. During the mayor's tenure, African-Americans and Hispanics constituted 96% of seasonal hires and 96% of those re-hired for positions within Freeport. In contrast, more than 90% of the Department heads who retired, resigned, or were not reappointed were White persons. In context, 66.1% of the eligible labor force was composed of White persons.

On the eve of trial, the court denied the Village's motion for summary judgment. In doing so, the judge noted that the courts continue to struggle with how to handle claims of reverse discrimination. The court concluded, however, that the standard of proving race discrimination under Title VII should be the same for all races. The court found that the respective credentials of higher-scoring officers, the mayor's failure to interview, other personnel decisions by the mayor, and the statistical evidence of personnel decisions made during the mayor's tenure, warranted a trial on the race discrimination claim. A few weeks later, a jury awarded the higher-scoring lieutenant $1.35 million in damages.

The Barella case serves as a cautionary tale in assessing the lawfulness of employment decisions. An analysis based on an individual's minority status is incomplete. Careful consideration should be taken as to whether a decision is based on a protected class (minority or otherwise). If you have any questions about the legal boundaries of adverse employment actions, please contact the author of this article or your Clifton Budd & DeMaria attorney.

About the Author
Scott M. Wich
Partner
Mr. Wich is a regional attorney focusing on providing local, regional and national clients with services concerning management-related labor and...
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