RPD asked a job seeker to prove he's Asian. Is that even legal?

January 18, 2019 06:39 PM

ROCHESTER, N.Y. (WHEC) - News10NBC is asking more questions in our investigation into a young man whose job application was stopped by the RPD because the RPD and the City of Rochester don't think he's a minority.

The young man says RPD told him to prove that he was Asian. News10NBC is checking to see if it's legal for an employer to do that.


Peter Abee was adopted from an orphanage in Bulgaria.

In 1993, he arrived with his adopted mother, Linda Abee, at the Rochester airport when he was just five years old. He grew up in the Boy Scouts. He was police explorer and has a criminal justice degree from Genesee Community College. 

"I've wanted to be a police officer since I was six years old," Abee said. 

On his application to the RPD in 2018, Abee checked the Asian Pacific Islander box. It's one of six boxes on the application form under the category of race and ethnicity. 

Why did Abee pick that box? 

He took an AncestryDNA test which says he's 51 percent Asian Pacific Islander. Checking the box put Abee on the minority civil service list. 

But in November, Abee says an official from RPD stopped his interview and told him to prove he's a minority. 

"And he told me if I want to keep going through the process then I actually have to talk to my parents or grandparents and get some kind of proof," Abee said. "So I asked him, 'how can I do that if I'm adopted? This is the reason why I took my AncestryDNA.'"

The RPD and the City of Rochester called his DNA results "unauthenticated."

In a statement, the city said his Bulgarian birth certificate "does not state his race and/or ethnicity despite his assertion that he is of Asian descent."

They did not see his Bulgarian adoption decree that called him of "minority ethnic origin." 

But News10NBC wanted to know if any employers, including the city, can even ask the question that Abee says the RPD asked him.  

News10NBC Chief Investigative Reporter Berkeley Brean: "In New York state, can an employer ask a job applicant to prove his or her race or ethnicity?" 

Paul Keneally, labor attorney at Underberg & Kessler: "So generally no."

Paul Keneally is a labor attorney at the law firm of Underberg and Kessler. 

Keneally: "The only exceptions would be, New York City can do it under the relevant statute 296.1 of the human rights law for purposes of affirmative rights purposes. And/or if there is a court order of private lawsuit that was either ordered by the court or pursuant to consent decree and we understand Rochester had one from 1974."

News10NBC read that court order to the RPD from 1974. It directs the RPD to become more diverse. But we found nothing in the order that says the city can ask job applicants to prove their minority status. 

Keneally: "That's not a relevant question. It's not something employers should be seeking to know because they should be hiring based on the job qualifications and experience and all those neutral factors to get new employees."

For two days, News10NBC asked the mayor's office for the written policy that says any city department or agency can ask a job applicant to prove their minority status. 

We also asked the city to provide the written policy that details the acceptable proof for someone who checks the box that says Black or African-American, Hispanic, Native American or Native Alaskan. 

As of the posting of this story, the city has not provided those policies. 

If the answer to the second question is a birth certificate, News10NBC would remind the city that birth certificates in Monroe County have not listed race and ethnicity since the 1960s. 

News10NBC will ask the same questions again when City Hall opens for business on Tuesday. 


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Berkeley Brean

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