1-in-3 rule

[RTS4Life]

By now, most of you probably recognize the vexing legal problem associated with the so-called "one-in-three" rule. The rule, which is set forth in Civil Service Law §61, entitles a public employer to pass over a candidate on a civil service eligibility list in favor of another, lower-scoring candidate. Today's column addresses one particular consequence of the one-in-three rule: its effect on employment discrimination claims relating to hiring and promotion.

The 1-in-3 rule reflects the legislative finding that public employers are entitled to base personnel decisions on more than test scores alone. In cases where there existed evidence of employment discrimination, courts have treated the rule as sharply restricting their power to compel public employers to make appointments or promotions to remedy the discrimination.

Today's column proposes using a 10-year-old case to bolster the courts' remedial power to appoint or promote those on eligibility lists who have been passed over for discriminatory reasons.

Limited Remedies

The following example illustrates how the 1-in-3 rule interferes with the remedies potentially available to you: You pass a civil service exam and are placed on an eligibility list. You are then skipped over on the list for a lower-scoring candidate.

Let's assume a court finds that your employer, when passing over you, discriminated against you. Because of the 1-in-3 rule, the court would likely order your employer to only "reconsider" you for the appointment or promotion. Needless to say, a remedy which merely directs a public employer to "reconsider" you is essentially no remedy at all.

Ten years ago, the state's highest court, in Beame v. DeLeon, saw things somewhat differently. Beame involved a charge of sexual discrimination which originally had been filed with the New York City Commission on Human Rights ("Commission"), an administrative agency which determines claims of discrimination.

In Beame, the Commission found that certain female police officers had been the victims of discriminatory practices including: restrictive hiring and quotas; delayed appointments; and assignments to restricted duties, including frequent involuntary assignments to "matron duties." The Commission issued an order adjusting the seniority dates of the female police officers. By awarding retroactive seniority to the officers, the Commission was in fact ordering new, earlier appointment dates for them (to match the appointment dates of their male counterparts).

Retroactive Seniority

The court, by affirming the Commission's decision awarding retroactive seniority (and thus new appointment dates), rejected the Police Department's argument that the Commission had infringed on the Department's managerial right, under the 1-in-3 rule, to appoint candidates.

The court in Beame explained its affirmance by noting that the Legislature intended the Commission to have "broad remedial powers to take action against discrimination." In other words, the Commission's broad remedial power to eradicate discrimination entitled it to circumvent the 1-in-3 rule when it awarded earlier appointment dates to the female officers.

The court in Beame also reviewed the state and local anti-discrimination laws and observed that the "governmental policy against discrimination enjoys the highest statutory priority." Thus, Beame also underscores that the anti-discrimination laws should not necessarily be subordinated to the exclusive right, conferred on public employers, to make appointments and promotions. In other words, the 1-in-3 rule should not be considered more important than the goal of eradicating employment discrimination.

Using Beame

Certain aspects of Beame make the case difficult to cite for the proposition that a court or an administrative agency, such as the Commission, can compel a public employer to make appointments or promotions. For example, it can be argued that Beame permits only an award of "retroactive seniority" to those persons already appointed or promoted from a civil service list (like the female police officers). In addition, the court in Beame found evidence of "long-standing systematic discriminatory practices" in the police department. Said practices may not exist in your discrimination case challenging the 1-in-3 rule.

Still, Beame remains the best decision we have on the 1-in-3 rule. We must be prepared to develop and broaden its favorable outcome by focusing on its opinion that a public employer's right to make appointments and promotions should not overshadow the power to eradicate discrimination. Certainly, Beame remains good precedent for courts to uphold any future Commission decision to make retroactive appointments to remedy discrimination-even in the face of the 1-in-3-rule.

[RTS4Life]

CSL §
CSR § 61.1
3.6
4.2 Appointment or promotion from an eligible list must be made by selecting one of the three highest ranking eligibles willing to accept appointment. However, if there are eligibles having "tied" ratings, selection may be made from among those whose final ratings are equal to or higher than the third highest ranking eligible on the list who have indicated a willingness to accept appointment. All eligibles attaining the same score are listed as having the same rank.

And in practicum:

When a civil service exam is given, a list is established afterwards from which city agencies hire. The list consists of all those who passed the test, ranked by their scores. New York State Civil Service Law requires agencies to utilize the list when they are hiring for that title, and requires them to consider the top three scorers remaining on this list; this is known as the "one-in-three rule." Once a list is established, it remains in effect for one year, and can be extended for up to three additional years.

One in Three Rule: Under New York State Civil Service Law, this rule provides City agencies with the discretion when hiring to select one of the three eligibles scoring highest on the ranked eligible list of exam passers.

Your list number as a result is very important. Your agency cannot simply appoint whomever they want, whenever they want. Now they must, by law, proceed in number order while making appointments. If, for example, the Commissioner of the agency is list number 19, the Commissioner cannot be appointed while the first 18 candidates on the list are ignored.

The One-In-Three Rule.Your agency does not have to appoint every successful candidate. When the agency "considers" candidates whose list numbers are #1, 2 and 3 for the first job, the agency can select the best of the "one-in-three."

If the agency gives that first appointment to the candidate whose list number is list #1, numbers 2 and 3 are marked "CNS" or considered but not selected. If a second job is available, list #s 2, 3, and 4 must be considered. If #2 is chosen, #3 has been considered but not selected twice and #4, once.

When a third position is offered, #3, 4 and 5 are considered, but if the job goes to candidate #4, candidate #3 has been considered but not selected three times. His or her name is removed from the list for any future consideration. The Agency can (but does not have to) grant a candidate's written request for later restoration to the list.