- Feb 4, 2006
Well, setting aside the fact that the context is totally different (criminal law vs. employment practices), I'd probably sue the city for its practices of targeting minorities for speeding violations, rather than the individual cop for a particular stop. Something like the "stop and frisk" litigation that resulted in invalidating that NYPD program, regardless of whether one particular police officer on a given day with a particular target was justified in applying the policy. Because I'd be trying to affect institutional change.Good post, @BroodsSexton. I'll just say that imagine you're a police officer. Your police department has a real history of stopping black drivers at a massively disproportionate rate than white drivers. Ergo, there's a real systemically racist issue with your department. But you're a good cop, trying to be fair and just. You stop two people in a given day. The first one is a white driver, and the second is a black driver.
The black driver then sues, claiming that you stopped him because he's black, and he has all the years of data in your department to support his claim. But that's not why you stopped him at ALL. You stopped him because you happened to see he was speeding. And in fact, you stopped a white guy earlier in the day because....he was speeding too.
So suddenly you're branded a racist and people in town are coming at you for your racist enforcement of the law. That wasn't your intent, nor is that what you did. The overall police department's statistics are being used against you.
Is that fair to you? Is that how the police department's statistic should be used? To demonstrate that YOUR specific actions were racist?
I don't think I'm wrong when I say that it's sometimes easier to demonstrate systemic racism than to demonstrate any specific action is racist.
As far as the actual law goes, I'll totally defer to you, because I have no clue about that.
I haven't thought through the possible objections to whether Flores is the right plaintiff to bring the type of lawsuit he's bringing, where he's seeking to affect institutional practices. I guess one question I have is what remedy can he reasonably seek here? Because he's not really attempting to stop a particular policy; he's attempting to change the affirmative practices, generally, and get more minority coaches hired. This isn't really the core of my practice, so I'm not aware of the precedents for this kind of litigation. I'd be interested to hear from others who can speak to this issue.
Let's assume he proves he was affected by a system that has a disparate impact, and a jury agrees it affected his termination (EDIT: or lack of hiring). What then? Just money?