Opertinicy at en.wikipedia, Public domain, via Wikimedia Commons
Yesterday, in this video about the Brian Flores race discrimination lawsuit against the National Football League, Miami Dolphins, Denver Broncos, and New York Giants, my partner and I talked about whether the complaint pled enough facts to withstand a motion to dismiss.
Of the race discrimination claims against the three football teams, we concluded that the one against the NY Giants seemed the strongest (relatively). Last night, the NY Giants responded — to Mr. Flores, not my partner and me — with a statement explaining why they believe that Mr. Flores’s claims against the team have no merit.
Let’s take a look.
How will Mr. Flores prove race discrimination?
Before we get to the Giants’ statement, how about I explain what Mr. Flores must do to convince a jury that the Giants discriminated against him as a matter of federal law based on his race when the team failed to hire him for its recent head coaching vacancy. (The legal standard will vary slightly under state and local law).
For Mr. Flores to recover on this discrimination claim against the NY Giants, Mr. Flores must prove that the NY Giants intentionally discriminated against him. Mr. Flores must prove that his race was a determinative factor in the NY Giants’ decision not to hire Mr. Flores, i.e., but for his race, the NY Giants would have hired him.
To prevail on this claim, Mr. Flores must prove the following by a preponderance of the evidence. First: the NY Giants failed to hire Mr. Flores. Second, Mr. Flores’s race was a determinative factor in the NY Giants’ decision. Although Mr. Flores must prove that the NY Giants acted with the intent to discriminate, Mr. Flores is not required to prove that the NY Giants acted with the particular intent to violate Mr. Flores’s federal civil rights. Moreover, Mr. Flores is not required to produce direct evidence of intent, such as statements admitting discrimination. Intentional discrimination may be inferred from the existence of other facts.
The burden of proof will then shift to the NY Giants to articulate a legitimate, nondiscriminatory reason for not hiring Mr. Flores. The NY Giants will prevail if they articulate a legitimate, nondiscriminatory reason for not hiring Mr. Flores. A judge or jury cannot question the NY Giants’ wisdom or business judgment — even if it seems harsh or unreasonable.
Why don’t the NY Giants believe that Mr. Flores’s claims hold water?
In his complaint, Mr. Flores claims that the NY Giants’ decision to interview him on January 27 was a pretext for discrimination — a sham interview — because they had already decided by January 24 to hire Brian Daboll, who is white. Mr. Flores’s proof is a text message exchange with New England Patriots Head Coach Bill Belichick on January 24. The Pats head coach mistakenly congratulated Mr. Flores on landing the NY Giants’ head coaching job when Mr. Belichick thought he was texting Mr. Daboll instead.
The NY Giants offer these points in rebuttal:
- The text exchange between Mr. Belichick and Mr. Flores occurred on January 24, before Mr. Daboll’s in-person interview on January 25. Previously, the Giants had only interviewed Mr. Daboll over Zoom for 20 minutes and would not base a hiring decision on such a short, remote interview.
- Mr. Belichick does not speak for and has no affiliation with the Giants.
- The NY Giants spoke with Mr. Flores about the head coaching vacancy before and after the text message exchange with Mr. Belichick on January 12, January 18, January 26, and January 27.
- On January 27, Mr. Flores spent an entire day in the NY Giants’ offices going through his second interview for the position, meeting with ownership and other staff members, and receiving a tour of our facility.
- The NY Giants did not decide to hire Brian Daboll until the evening of January 28.
A cover-up for discrimination?
Mr. Flores will have the opportunity to test the NY Giants’ defenses in discovery if his claims against the NY Giants survive a motion to dismiss. Ultimately, Mr. Flores’s burden is to prove that the NY Giants discriminated against him based on his race, not the NY Giants’ burden to disprove it. Mr. Flores would win if the NY Giants’ stated reason for its actions was a pretext, or excuse, for discrimination.