February 03, 2022

A Black former Miami Dolphins head coach's blockbuster suit accusing the NFL of systemic discrimination demonstrates that even employers with strong policies aimed at boosting diversity can get flagged for bias violations if those policies aren't carefully applied, experts say.

Brian Flores filed his Manhattan federal court class action against the league weeks after being controversially fired by the Dolphins and days after he was passed over for a job as head coach of the New York Giants in favor of Brian Daboll, a white coach from the Buffalo Bills' staff.

The suit includes claims that the number of Black head coaches in the NFL is woefully out of step with the league's predominantly Black player population, despite the NFL's so-called Rooney Rule, which requires teams to interview at least two external minority candidates for head coaching positions. Flores also alleges that his interview with the Giants was a sham to comply with the Rooney Rule because text messages he received from New England Patriots head coach Bill Belichick indicated the decision to hire Daboll had already been made.

Regardless of whether Flores' suit proves to be successful, employment attorneys say his claims show the danger that lurks for employers when there is a chasm between their diversity policies and the way hiring and promotion decisions are actually made.

"I am interested to see what happens with this particular case, but really hope that it doesn't deter employers who are actually wanting to find policies that will make a difference," said Christine Webber, co-chair of plaintiffs-side firm Cohen Milstein Sellers & Toll PLLC's Civil Rights & Employment practice.

While many companies follow through on enforcing their diversity policies, Webber said there "are plenty that just see it as 'check-a-box,'" in which they "establish a policy and call it good."

"Companies are all over the place, but far too many, I would say, [believe] establishing a policy is like, 'OK, now we can say we have a policy so, you know, we're fine,' without really doing the work needed to educate their managers and set up systems that will actually be effective," Webber said. "There are companies that look fine on paper, but the paper just doesn't reflect what's really happening on the ground for employees."

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Regarding the allegation in Flores' suit that his rejection for the Giants job was made before his interview ever took place, Cohen Milstein's Webber said it's the sort of thing she sees happen when there is an opening for people to make decisions outside a company's hiring protocols without incurring consequences. 

While a policy on paper may be worthwhile for nudging people to truly consider a broader pool of candidates than they otherwise might, Webber said its effectiveness hinges on whether an employer enforces it and "keep[s] people from making decisions outside the system."

The ways rogue actors can do so, she said, may be by drafting job announcements in such a way that they match the credentials of a preferred candidate or by conducting interviews "that are really for show."

To avoid that and make sure rules are being followed, employers can consider things like tying a portion of a manager bonus to complying with a variety of policies, specifically those that address diversity, and having equitable compensation among members of their team, according to Webber

"I think the other thing is [to] listen to their employees and actually make it safe for employees to give them feedback, because employees tend to sort of see where the gaps fall between [an] announced policy and what's happening in practice," Webber said. "That's information that employers can use to tweak their systems and make improvements. But they're not going to get that feedback if their response to information is to get defensive and shut it down and allow managers to retaliate against those who bring the issues to their attention."

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