A recent case from the Second Circuit presented an interesting fact pattern for law enforcement employers facing claims of discrimination by stereotype. In Hanks v. City of Syracuse, a black police officer who was denied an assignment to a prestigious gun violence task force brought suit for race discrimination under Title VII, hostile work environment, and retaliation. The District Court dismissed the case for failure to state a claim, which the Second Circuit affirmed on appeal.
The plaintiff alleged that after being nominated to the task force, other officers who were already part of the task force – all of whom were white – prepared a memorandum at their supervisor’s direction that raised concerns about plaintiff’s candidacy. The memo detailed “several incidents and social media posts where Hanks had purportedly affiliated with ‘gang members and convicted criminals,’ and referred to several videos Hanks had posted on social media that depicted him in uniform while listening to ‘a rap song’ and using vulgar and explicit language.” The plaintiff filed an EEO claim after learning of the memo. Nine days later, the department disciplined the plaintiff for his social media posts. Plaintiff alleged that the memo was a racially-motivated attempt to undermine his nomination to the task force, and that the discipline was retaliatory for filing an EEO claim.
The plaintiff’s Title VII claim relied primarily upon a “stereotype” theory of discrimination, as the challenged memo allegedly invoked racist stereotypes in raising issues with Plaintiff’s association with gang members and his social media posts featuring explicit rap music. The Second Circuit held that to establish discrimination based on stereotyped remarks, those remarks must make racist generalizations about the protected class. In ruling against the Plaintiff, the Court held that the memo “documented specific incidents in which [plaintiff] was individually involved that, if believed, could reasonably lead the police department to question his suitability for membership in a gang task force.” These specific instances included the plaintiff being tagged in a known gang member’s social media post asking Plaintiff to “come pick up his shirt,” as well as other social media posts in which gang members were asking Plaintiff about police-related topics. Even more concerning, one social media post documented an incident where the Plaintiff was present at the scene of a shooting while off-duty and was in a car with other suspected gang members that was pulled over for a DUI-related traffic stop.
The Court viewed these complaints as neutral and individual critiques of Plaintiff’s performance, and not the invidious and general statements about an entire protected class that would support an inference of discrimination by stereotype.