Know Your Rights
Lost Promotions and Remedies

By JAMES A. BROWN

A recurring theme in this column has been contrasting the legal rights enjoyed by public-sector employees with those of their private-sector counterparts.

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

As I have explained, civil servants enjoy certain advantages, including statutory job security, slightly broader whistleblower protection and limited Constitutional rights afforded to them as government employees.

On the other side of the ledger, there exist only limited judicial remedies for those civil servants claiming they were wrongfully denied appointments or promotions. This is because of the civil service "one-in-three" rule. Last summer, the Appellate Division, Third Department, in Close v. New York State Division of Human Rights, affirmed a rather remarkable remedy fashioned by the State Division of Human Rights concerning a denied promotion within the public sector.

Denied Promotion

As previously reported, courts will not order public employers to promote plaintiffs who have proven unlawful discrimination where there exists a civil service eligibility list for the job title in question. This restriction exists because the one-in-three rule (which permits public employers to pass over candidates on an eligibility list) confers broad discretion on public employers to make appointments and promotions. The best possible outcome is a court order directing the public employer to reconsider a plaintiff on the eligibility list provided the list is still active.

What if there is no eligibility list? In other words, what if the promotion is to a title in which the employee will serve provisionally, and presumably for only nine months pursuant to Civil Service Law Section 65(2). Close addresses this very question in a somewhat surprising manner. Close involves a state employee who, after being denied a promotion to a provisional position, filed a gender discrimination complaint with the State Division of Human Rights. The petitioner alleged that he was denied the promotion in favor of a female who had significantly less educational qualifications and work experience.

Back-Pay Remedy

The State Division of Human Rights found evidence of discrimination and ordered back pay and other compensatory damages for mental anguish. When the State Division declined to permanently promote the petitioner (and limited his back-pay award to nine months to correspond to the nine-month cap on provisional employment), the petitioner filed an appeal with the Appellate Division in Albany. The Appellate Division affirmed the State Division's remedy in its entirety.

While the petitioner was apparently disappointed with the outcome, the State Division's back-pay remedy, as affirmed by the Appellate Division, marks an inroad in this area of denied promotions. The back-pay remedy basically states that the petitioner should have been promoted earlier. Essentially, the remedy directs the public employer to consider the petitioner retroactively promoted (albeit for only the nine months associated with provisional employment) without actually ordering the employer to promote him.

It is important to underscore that the remedy was crafted by the State Division of Human Rights which, according to the Appellate Division, has broad remedial powers to eradicate unlawful discrimination. These broad remedial powers were previously recognized by the State's Court of Appeals in Beame v. DeLeon, an important decision I reported on in "Confronting the 1-in-3 Rule," July 15, 2005. In Beame, the State Division had retroactively adjusted the seniority of female police officers, where there was evidence of systematic discrimination, thereby effectively rolling back the appointment dates of the petitioners notwithstanding the one-in-three rule.

The limited back-pay award in Close represents a minor but significant victory in the struggle to obtain legal remedies for public employees denied promotions for discriminatory reasons. Employment lawyers do not typically recommend the State Division of Human Rights for filing discrimination complaints. At the State Division, you have no right to a jury trial or to recover attorneys' fees from your employer if you prevail. Still, Close reminds us that the State Division of Human Rights may be the best forum for civil servants claiming unlawful discrimination in this area of appointments and promotions.