was this a discrimination? was this a racial discrimination?

Not sure

I wasn't sure from your question whether you were talking about you or about how your boss selected between #1 and # 2.

If you were asking whether you have any recourse if your boss, given his history with P, decides to blame you for selecting #2 over # 1, my answer is probably not.

If you were asking about the selection between #1 and #2, my answer would be that, from what you've told me, I don't know whether there has been race discrimination. The fact that one was white and the other black might be one piece of a pattern that might be discrimination, but that one fact alone is not usually enough to establish discrimination.

The reason I decided to respond to your question really related more to your use of the word "discrimination." Discrimination is really not illegal. For example, say we have two employees with similar backgrounds, including the same race, religion, national origin, sex, etc. Both are going for a promotion. Of course only one will get the promotion. Because only one can get the promotion, you can say that the one who did not get the promotion was discriminated against, and the one who got it was discriminated for. The word "discrimination" really means choice. You choose between or among for various reasons. A person with "discriminating tastes" is someone who is capable of making the best choice among good selections.

When an employment lawyer is talking about "discrimination," that lawyer is really talking about the act of choosing for an improper reason. Thus, to select someone because of race or the other "protected classifications" becomes illegal only because the selection was based on that protected classification.

To anwer your first question ("Was it discrimination"), whether we are talking about you or the selection between #1 and # 2, we are of course talking about discrimination because someone is making a choice. If your boss decides to blame you so he can avoid getting hung out to dry because of two bad hiring choices by him, the choice to blame you is discrimination, but not the illegal kind. It is just a choice. Maybe not an ethical choice. Maybe not a fair choice. Maybe a bad choice. But not an illegal choice. With respect to selecting between #1 and #2, it is of course discrimination because we are talking about a choice.

However, the selection between # 1 and #2 is not necessarily an illegal type of discrimination. I really cannot tell whether your boss illegally discriminated. For all I know, #2 might be his brother-in-law, or someone he owes money to. If he selected #2 because he's related or as pay back, it might be a bad business decision, but it isn't necessarily illegal discrimination.

To determine whether a situation is really illegal discrimination, you generally have to look at the bigger picture. Let's say that in all the years you have worked for this guy he has never hire a black person, even though there had been a lot of good candidates. Let's also say that he is always making derogatory remarks about blacks. Let's say he always has negative comments about black employees in other departments in the company. These additional facts, along with the fact that #1 was black, now starts to suggest a more firmly based conclusion that the selection of #2 was racially motivated. But even then there may be room for debate.

Employer lawyers will tend to tell you things that may lead you to believe that race claims are based on almost nothing and are easy to win. The opposite is true. Race discrimination claims are tough because they require such a detailed consideration of the facts.

Now back to you. There is another concept that often goes hand in hand with discrimination. That other concept is retaliation. "Retaliation," in its legal sense, means one person taking an adverse action against another because that other person exercised a legally protected right. A legally protected right would include making a claim of race discrimination. Another legally protected right (or responsibility) is helping another person who might make or is making a race discrimination claim.

Let me give you an illustration of how that might work. Let's say that because your boss created such a problem by hiring P, the manager no longer trusts his hiring decisions. As a result, before hiring #2, the manager comes to you and asks you who you think is the better candidate. You say #1.

The manager asks you why you prefer #1. You say, because he has far more technical competence.

The manager now asks you why you think your boss recommended #2. You say that you believe its racial.

Now, the manager goes back to your boss and confronts him with the possibility its racial. The boss fesses up. He says he selected #2 because #2 is his brother in law. #1 gets the job.

It doesn't end there. Your boss is now angry with you because you mentioned race. He does all kinds of things to you because of what you said. That would be retaliation, and illegal. You could sue your employer if it doesn't end fast. (Before suing in a situation like this, you should make a complaint to someone beyond your boss, claiming retaliation.) And, interestingly enough, it would still be retaliation even though you were wrong about the actual motivation behind your boss selecting #2, as long as there was a good faith basis for your saying it was race discrimination as opposed to something else which might have been unwise but not necessarily illegal.

Let's go back to your example. Let's say you get fired because your boss tells the manager that you recommended #2. That's a lie, but your termination is still perfectly legal because under New York's employment at will doctrine you can be fired at any time for any reason, even if the reason is false. Interestingly, your termination would still be legal even if the real reason for selecting #2 was race discrimination. Your termination would still be legal because you never complained about the race discrimination in any way, and you were not helping #1 or the company deal with a possible race discrimination problem. In other words, you had not done anything that might have protected you.

posted by David M. Lira  |  Jun 14, 2001 3:03 PM [EST]

Sounds like it

If someone treats a person less favorably than others due to their national origin, color, race, age, religion, gender or disability, it's discrimination. If the reason your boss wanted #2 more than #1 was because he was white, it's discrimination. You have to look at all the possible reasons he wanted #2 and decide which one motivated him (i.e. maybe they were personal friends, maybe #2 went to his same college, etc.) If it only can be explained by ethnicity, it may be discrimination.

posted by John Upton  |  Jun 14, 2001 09:45 AM [EST]