Brian Flores’ Lawsuit Shows the Limits of Diversity Initiatives

While mountains of studies and the paucity of African Americans in most professions have long signaled the prevalence of hiring discrimination, the insidiousness of the practice typically makes it difficult to prove. It’s why the recent lawsuit filed by former Miami Dolphins head coach Brian Flores–who alleges the New York Giants and the Denver Broncos conducted what he calls “sham interviews” as an act of diversity window dressing–resonates for many African Americans. The teams have denied the allegations.

What is playing out with Flores is not just a story about football. It’s a story about the American workplace. Research shows that Black candidates are on average less likely to be hired than even less qualified white ones. Studies have also found that white men with recent criminal records are far more likely to receive callbacks than Black men with no record and that Black college graduates are two times as likely to be unemployed as other graduates.

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So Flores may be a casualty of the same deep-seated attitudes that made the NFL’s Rooney Rule necessary to begin with. The rule, which requires teams to include minority candidates in interviews for leadership positions, was adopted in 2003 after a study commissioned by civil rights attorneys Cyrus Mehri and Johnnie Cochran found that Black NFL coaches were more likely to be fired, and less likely to be hired, than white coaches. The study revealed that Black head coaches won more games per season than white head coaches. They also led their teams to the playoffs 67% of the time, compared to 39% for white coaches. The numbers were particularly glaring in a league in which nearly 70% of the players were Black but Black candidates were rarely hired as head coaches or general managers or for other front-office positions. While the league was founded in 1920, it only hired its first Black head coach in 1989 and its first Black general manager in 2002.

Mehri and Cochran’s findings mirror those in other influential fields–from corporate America to art museums, academia, fashion, and Hollywood–where Black people remain disproportionately underrepresented, most notably at the top. Over the past few years a number of companies, including Amazon, Facebook, and Uber, have adopted their own versions of the Rooney Rule, but even with these policies in place, progress has been slow. In 2018, for example, Amazon had no people of color on its 10-member board. It adopted the Rooney Rule, but at the end of last year, it still had just one Black board member. In its 2021 workforce data, it reported that just 3.8% of its senior leadership was Black. The same year, at Facebook, Black people made up 2.9% of leadership, held 2.1% of tech positions and were 4.4% of the overall workforce. After it adopted the Rooney Rule, Uber added an African American woman to its board, but according to its 2021 diversity report, leadership was just 3.8% Black and there were no Black people working in tech leadership positions.

So while the Rooney Rule may increase the number of candidates of color who are interviewed, Black people remain acutely underrepresented in most fields. Since the NFL adopted the rule, the number of Black coaches in a single season hit a high of eight, and is back down to one, which is what the number was in 2002 when Mehri and Cochran first decided to highlight the evident disparities.

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This is not to say change isn’t possible. While representing Black plaintiffs in a landmark discrimination lawsuit against Coca-Cola in 1999, Mehri had found similar instances of inequality. Employment data showed that Black employees at the company made up only 1.5% of senior management and that just one had risen to senior vice president in the company’s 113-year history. It also found that Black employees made less than white employees in the same position. With the benefit of court oversight and intentional leadership, the company, over a five-year period, dramatically increased the number of African Americans in senior management even if, in recent years, there have been signs of rescission. While the percentage of Black executives increased from 1.5% in 1998 to 15% by 2010, by 2020–two decades after the company reached a $192 million settlement with the plaintiffs–that percentage had dropped to 8%. And the overall number of Black employees was 15%, a full 5% lower than what it was in 2000.

Just as organizations can swing open the doors of opportunity to groups of people who have routinely been shut out, without vigilance they can just as easily retreat to well-worn patterns that research shows reflect a bias toward the familiar. Any diversity initiative–whether the Rooney Rule or the hiring of diversity professionals–is only as good as an institution’s actual commitment to racial equality. If it is only concerned with checking boxes, it will never achieve the diversity the rule intends to foster.

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Mehri told me last week that the Rooney Rule can work only if there’s oversight and accountability. He applauds the league for enforcing the rule in 2003 when it levied a $200,000 fine against Detroit Lions’ president and CEO Matt Millen for hiring a white coach without interviewing any candidates of color. But he believes the league made a grave error in 2018 when it said the Oakland Raiders complied with the rule, despite accusations that sham interviews were conducted with minority candidates after the decision to hire Jon Gruden to a 10-year $100 million contract was already made. “We saw it at the time and pleaded with them to say that they crossed the line and they couldn’t get themselves to do it,” Mehri says. “That one non-action sent a powerful message that you can just go through the motions.”

The league denied the allegations then and now and insists that “diversity is core to everything we do.” But the numbers suggest otherwise. Whether Flores can prove racial discrimination in court remains to be seen, but neither denials nor toothless diversity initiatives can overshadow the stark reality of yawning racial disparities in the league, and in much of America.