We have a disconnect, you and I. I'll assume the fault is mine so I'll try to bring greater clarity to my thoughts here.
[snip]
So yeah, obviously it's a systemic issue. It's institutional racism. Of course. What's hard about institutional/systemic racism is that it's hard to pinpoint just HOW individual people are being racist. Again, is Dolphin ownership being racist for letting Flores go? Good luck demonstrating that.
So where I land is that I don't think the *motive* of the owners is racism. I don't think they're deliberately treating black and white candidates and coaches differently. I think they're looking to win. And I think they make decisions with winning (or on-field success anyway) as the #1 priority, and diversity comes after that.
I do think, getting back to a point I put a pause on earlier, that there may be (as some have pointed out here) some unconscious bias going on. Not just in terms of what I suggest - preference for hiring people in their circle of trust, nepotism, etc. - but also in that some may believe (whether they admit it or not) that whites may be more capable of being better coaches than blacks. So a black candidate might have to absolutely blow them away before an owner will hire him over a white candidate. That's certainly possible. I don't think that they'd admit this, or that they even know that this is what's going on inside their brain. Racism can deceive us, of course. Many people who think they're not racist actually have many racist tendencies. So that's definitely a possible factor. But I think, in any case, that their motive is on-field success, which translates into financial success. Their decisions are made accordingly. So pointing out any specific case as an example of racism is REALLY hard to do. But it's easier to step back and look at the bigger picture and see obvious problems.
Just injecting a bit of law here and addressing your bolded comments: in the context of Title VII,
disparate impact on a particular group may be
considered evidence of intent or motive. In other words (for the statistically-minded among this fabled Red Sox baseball board), the statistical evidence of hiring, firing, promotion, retention, interviewing, etc. may be
evidence of intent as it applies to Flores, specifically, and the NFL's practices more broadly. Most recently, this was explored by the Supreme Court when reviewing the Trump administration's attempt to eliminate DACA.
Link. Is it the equivalent of a smoking gun email? No. (Those are in the Gruden lawsuit...) But it's evidence, to be given weight. One interesting issue to be worked out is how the NFL's statistics,
writ large, apply to the Miami situation. A question I raised earlier in the thread (which I don't know the answer to) is how is the
league responsible here, as opposed to the individual team? And if it's just the team, shouldn't we be focused on Miami's employment practices and statistics (which are not specifically pleaded I don't believe)?
I think the disjunct that the two of you are having is that
@BaseballJones, you are acknowledging the conclusion (that there is a racism problem), and you are acknowledging the former (
i.e., the statistics), but you are discounting the value of the former as
evidence of the latter, and suggesting Flores should lose if he doesn't have the direct receipts of a smoking gun email or the equivalent. Now, reasonable minds can disagree on how much weight to place on the statistics and evidence of disparate impact. (The current Supreme Court would probably like to eliminate the principle entirely...) But it's going to create frustration from
@BringBackMo if you say "I acknowledge a structural problem with racism in the league. And I acknowledge that
prima facie, these statistics indicate a problem with racism in the league.
But, I can't reasonably conclude
based on this evidence that racism affected Flores
in this instance." Because in an individual instance, it is very often difficult to prove
specific intent. If you have that specific intent, you know well-enough to paper around it.
This is why the disparate impact standard evolved. Because seemingly neutral criteria were nonetheless creating "headwinds" for racially equal hiring practices. In
Griggs v. Duke Power (a decision worth reading in its entirety), the Court invalidated a procedure that required testing and/or a high school diploma as a condition of departmental transfer when the testing was not a reasonable measure of job performance, and when the result is that African Americans were suffering from
disparate impact,
i.e., it kept African Americans from transferring.
In language that surely resonates for Flores:
"The objective of Congress in the enactment of Title VII ... was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices."
The Court continued, in language that speaks almost directly to some of the objections lodged in this thread:
The Court of Appeals held that the Company had adopted the diploma and test requirements without any "intention to discriminate against Negro employees." We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability.
Moreover, Duke Power had it's own Rooney Rule, which was acknowledged within the overall
evidence of the discriminatory practices:
The Company's lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.
Now,
Griggs was adopted by a much more liberal Supreme Court in 1971--but it's still good law, and provides the framework for disparate impact litigation like this. The argument will be about whether Flores was impacted by discriminatory employment practices--most acutely termination [EDIT-or non-hiring], but could be other employment action as well--but the overall context sure raises eyes for me. Hired to tank, thereby assuring he'd get a reputation as an unsuccessful coach. Tagged as "uncooperative" when he wouldn't accept unlawful payments. Terminated despite winning seasons. And defamed on the way out the door. All in the context of myriad admissions by the league that it has a problem, statistical evidence that looks pretty bad, and an ineffective "Rooney Rule" that hasn't done anything to reduce the headwinds that minority coaches face.
I'd sure wait around and listen to the evidence with an open mind.
