This past January 2022, Brian Flores was terminated by the Miami Dolphins after what objectively should be considered three successful seasons as its Head Coach. Initially, after Flores was first fired, Mike Tomlin of the Pittsburgh Steelers remained as the sole Black head coach in the NFL.  Recently, in just this last week, the Miami Dolphins hired Mike McDaniel (bi-racial) and the Houston Texans hired Lovie Smith, who is Black. Naturally, this begs the question: why are there only three Black head coaches in a league where over 70 percent of its players are Black?

According to a recent federal class action complaint filed by Flores in the Southern District of New York against the NFL, with the New York Giants, Miami Dolphins, and Denver Broncos named as co-defendants, the answer lies in statistics which appear to point to the NFL and its 32 white team owners engaging in racially disparate hiring practices. However, Flores’ portrayal of the NFL as a particularly egregious offender of laws promoting equal opportunity hiring practices may not hold under closer scrutiny.

On February 1, 2022, former Miami Dolphin Head Coach Brian Flores filed a federal class action, claiming the clubs failed to hire him based on his Black race. Flores alleges in the complaint violations of both Federal law, Title VII of the 1964 Civil Rights act as well as State law, New Jerseys Law Against Discrimination (the “LAD”). More specifically, Flores claims that the Denver Broncos in 2019 and New York Giants in 2022 held or scheduled “sham” interviews in order to appear compliant with the NFL’s “Rooney Rule.”

To be fair to the NFL, the Rooney Rule implemented and amended by the NFL reflects a significant tangible effort on the part of its owners to mitigate such inherent racism when it comes to hiring. Indeed, I cannot think of another industry that has taken the steps to incentivize diverse hiring practices for its employees as the NFL has done by requiring adherence to the Rooney Rule when it comes to the hiring of coaches and upper management. The Rooney Rule requires teams to interview at least two external minority candidates for head coaching vacancies and at least one external minority must be interviewed for any open coordinator position. On top of this, a team that loses a minority assistant coach who becomes a head coach or loses a personnel executive who becomes a general manager will receive third-round compensatory picks in each of the next two drafts, and a team that loses two minority staffers to head coach and general manager positions receives three third-round picks.

In 2019, Flores interviewed with the Denver Broncos for a head coaching vacancy. At the interview, Flores alleges he arrived on time but Broncos personnel arrived an hour late, appearing hung over from heavily boozing alcohol the night prior. Immediately after interviewing Flores, the Broncos selected Vic Fangio, a White man, to be the Denver’s next head coach. Three years later when Flores was fired by the Dolphins, he was a hot commodity in the head coach market. Thus, the New York Giants contacted Flores and scheduled to interview him on January 27, 2022. However, three days before the interview, Flores received a text message for New England Patriots Head Coach Bill Belichick, mistakenly congratulating Flores for locking down the job to be the Giants next coach, but shortly thereafter Coach Belichick sent a text message apologizing. Flores then interviewed with the Giants, knowing they already made the decision to hire Daboll. When Daboll was officially hired by the Giants, Flores understood he was only interviewed by the Giants for the purpose of the organization to appear in compliance with the Rooney Rule.

The Flores Complaint faces many obstacles. As to being certified as a class action Flores faces the daunting task of satisfying the Federal Rule of Civil Procedure 23 requirements of numerosity, commonality, typicality, and adequacy. Specifically, Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is impracticable.” Rule 23(a)(2) requires there be “questions of law or fact common to the class.” Rule 23(a)(3) requires “the claims and defenses of the representative parties” be “typical of the claims or defenses of the class.” And Rule 23(a)(4) requires “the representative parties” to “fairly and adequately protect the interests of the class.” In Wal-Mart Stars v. Dukes, 131 S. Ct. 2541 (2011) the Supreme Court emphasized that a class action cannot be used to short-circuit the defendant’s entitlement to a determination of its rights and duties vis-à-vis each class member, and that the plaintiffs must prove they can satisfy each element of Rule 23 before a class should be certified. Dukes, 131 S. Ct. at 2561.

New Jersey’s LAD and the federal Title VII laws prohibit employers from discriminating against employees with respect to his compensation, terms, conditions, or privileges because of his or her race, color, religion, sex, or national origin. To establish a prima facie case for discriminatory failure to hire under LAD and Title VII, the Plaintiff-Employee must prove:

(1) He is a member of a protected class, (2) he applied and was qualified for the position, (3) he was rejected for the position, and (4) the Employer-Defendant filled the position someone not in his or her protected class.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); New Jersey Model Civil Jury Charge 2.21B1 (Discriminatory Failure to Hire).

If the Plaintiff- Employee successfully satisfies the elements of a prima facie case, then the burden shifts to the Defendant-Employer to come forward showing a legitimate non-discriminatory reason for the adverse-employment action. If the Defendant-Employer is successful, the burden then shifts back to the Plaintiff-Employee to prove that the Defendant-Employer’s proffered reason is pretext for discrimination. Id.

The difficulty in proving discriminatory failure to hire claims is the lack of direct evidence of the Defendant-Employer’s intent to discriminate. Hence, the Plaintiff- Employee must prove their case with circumstantial evidence or evidence permitting a reasonable jury to infer race was the substantial factor causing the alleged adverse employment action. Id. Here, Flores may encounter difficulty proving race was the substantial factor in his failure to hire claim. For example, the New York Giants may defend the decision to hire Daboll over Flores arguing the decision was purely based on merit as opposed to race. To prove this the New York Giants may offer evidence they employed a Black General Manager, Jerry Reese, for ten years from 2007-2017, to counter Flores’s circumstantial evidence. Most recently, the Giants announced the hiring of Brandon Brown as its new Assistant General Manager. Brown is African American.

At Mashel Law, LLC our attorneys effectively handle all types of discrimination claims including those involving failure to hire. If you believe you are the victim of workplace discrimination, do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page, for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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