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Discrimination at its essence October 20, 2015

imagesThe Third Circuit’s recent decision in Hassan v. City of New York, — F.3d —, 2015 WL 5933354 is a welcome reminder that the Court understands the real harm inflicted by discrimination. Discrimination is not, and I repeat not, principally an economic tort. Economic losses often result from discriminatory decisions, but discrimination is more about the dignitary – some would say spiritual – injury inflicted when one is judged or treated differently because of skin color, race, age, gender or religion.

The plaintiffs in Hassan claimed that they were targets of a wide-ranging surveillance program that the New York City Police Department (the “NYPD”) began in the wake of the September 11, 2001 terrorist attacks (the “Program”). They alleged that the Program was based on the false and stigmatizing premise that Muslim religious identity “is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.” They sued “to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith.” The District Court threw the case out, believing that the Program had not caused any harm. The Third Circuit reversed. Let’s take in some of what the Appellate Court had to say.

“Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. After all, the fundamental concern of discrimination law is to redress the dignitary affront that decisions based on group characteristics represent, not to guarantee specific economic expectancies. *** Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the badge of inferiority inflicted by unequal treatment itself.”

Defense lawyers, neutrals and judges who rely on lost wages alone to measure the harm inflicted by discriminatory decisionmaking would do well to read Hassan and reflect on the “dignitary affront that decisions based on group characteristics represent.”

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