Know Your Rights
Promotions and Discrimination

By JAMES A. BROWN

The New York State Civil Service Law provides many of the legal rights enjoyed by a select class of employees, namely those employed in the civil service. For example, the Civil Service Law provides civil servants (regardless of whether they are unionized) with certain job security. The Civil Service Law, based on the State's Constitution, also sets forth rules by which appointments and promotions are supposed to be based on "merit and fitness."

James A. Brown is an attorney based in Manhattan. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

Yet this same Civil Service Law often makes it more difficult for civil servants to prevail in their employment discrimination lawsuits, even when there exists evidence of discrimination. Previously, I examined how the Civil Service Law's "one-in-three" rule limits a court's remedial power to redress unlawful discrimination ("Confronting the 1-in-3 Rule," July 15, 2005). Today's column addresses how the Civil Service Law actually impedes the success of certain discrimination claims (before remedies are even considered).

Last month, a Federal court decided Syken v. New York Division of Housing and Community Renewal. The decision illustrates precisely how the Civil Service Law makes it more difficult for civil servants to successfully argue discriminatory promotional practices. This is because, as stated in Syken, civil servants alleging discrimination must also demonstrate actual eligibility for promotion under the Civil Service Law.

Promotion Legally Denied

In Syken, a state employee filed a lawsuit, stating various claims, after he was denied a promotion on what he believed were unlawful discriminatory grounds. Ultimately, the court dismissed the plaintiff's promotion claim. The court reasoned that even if there existed evidence of discrimination, the plaintiff still could not rebut the employer's "legitimate, non-discriminatory" reason for denying the promotion - namely that the plaintiff could not satisfy the requirements of the Civil Service Law related to appointments and promotions.

In employment discrimination litigation, plaintiffs are accustomed to having to overcome an employer's "legitimate, non-discriminatory" reason for the alleged discriminatory act. However, in this area of denied promotions, a plaintiff first must demonstrate a "prima facie case" by showing that he or she: (a) is a member of a "protected class" (i.e. based on age, race, religion, gender, disability, etc.); (b) was qualified for the promotion; (c) was denied the promotion; and (d) the denial occurred under circumstances giving rise to an "inference of discrimination."

Once a plaintiff states a prima facie case, the burden shifts to the employer to state that "legitimate, non-discriminatory" reason for its decision not to promote the plaintiff. The burden then shifts back to plaintiff to refute the employer's reasoning. In such litigation, establishing a prima facie case is relatively easy. Problems typically arise when plaintiffs are expected to refute their employers' stated "legitimate, non-discriminatory" reasons for not promoting them. These reasons typically include that the plaintiff lacked certain required experience or educational degrees, or that some other candidate was more qualified. Employers may also argue that they simply did not like the plaintiff (provided that the employer's "personal assessment" was not tainted by unlawful discrimination).

Added Impediments

Syken highlights additional "legitimate, non-discriminatory" reasons upon which a public employer may rely when defending why it did not promote you within the civil service. For example, the court in Syken found no evidence that the plaintiff was on the eligibility list used by the employer for making the promotions. While the plaintiff argued that the eligibility list he was on (for a different title) was suitable for making the promotion, the Court rejected that argument in the absence of any civil service determination that the two lists were "equivalent." The Court also observed that the plaintiff's score was simply too low, at any rate, to permit his promotion under the Civil Service Law.

Syken makes clear that if you are claiming denied promotional opportunities, based on discrimination, you should make certain that you otherwise qualify for promotion under the Civil Service Law. Assuming you have a valid claim, your concern should be whether the court has the remedial power, in light of the "one-in-three" rule, to order your promotion. As my July 15, 2005 column explained, where an eligibility list exists, a court will likely order only that your employer "reconsider" you for promotion.