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Statistics Alone Can Prove Discriminatory Intent

Published: August 3, 2015

Publication: Daily Labor Report

By Jon Steingart

July 31 — A group of 12 black and Hispanic New York City sanitation workers seeking to represent a class can’t proceed on claims that the city discriminated on the basis of race and national origin in promoting employees into supervisory positions, the U.S. Court of Appeals for the Second Circuit ruled July 31.

Deciding an issue of first impression, the Second Circuit said statistical evidence alone may be used to prove intent to discriminate in a putative class action under the Civil Rights Act of 1866 (42 U.S.C. § 1981) and/or the equal protection clause if it is statistically significant and makes other plausible non-discriminatory explanations very unlikely.

The court affirmed the U.S. District Court for the Southern District of New York’s grant of the city’s motion to dismiss the lawsuit, however, saying the statistical evidence the sanitation workers offered fell short of this standard because it only showed breakdowns by race at each employment level without providing additional details.

The court declined to address whether the statistical evidence showed disparate impact in violation of Title VII of the 1964 Civil Rights Act. The workers filed individual charges with the Equal Employment Opportunity Commission and received right-to-sue letters, but a class action in court can’t arise from an individual administrative complaint, the court said.

Judge Jed S. Rakoff wrote the opinion, joined by Judges Guido Calabresi and Peter W. Hall.

Discriminatory Promotions Alleged

To support their claims, the workers submitted a chart displaying the racial breakdown of five positions, ranging from rank-and-file sanitation worker to level 4 superintendent. The chart included the percentage of each position that was held by white, black or Hispanic workers.

They also described experiences in which they personally weren’t promoted, although white sanitation workers were. Some of the white workers who were promoted were less qualified, even though there weren’t disproportionately more white sanitation workers who were qualified.

The discriminatory promotions resulted in a supervisory workforce that didn’t represent the general population of the city and had a lower percentage of black and Hispanic workers than the sanitation worker workforce, they contended. For example, the sanitation worker workforce was 56 percent white and 41.5 percent minority, they said, but the level 4 superintendent workforce was 80 percent white and 20 percent minority.

The workers filed a parallel lawsuit in state court alleging violations of city and state discrimination laws, which require proving discriminatory impact but not discriminatory intent, their attorney, Arthur Schwartz, told Bloomberg BNA July 31 (Burgis v. N.Y.C. Dep’t of Sanitation, N.Y. Sup. Ct., 652972/2014, complaint filed 9/13/14).

Statistics Plus Details Equals Intent

The sanitation workers’ claims of discriminatory promotion were undermined by the fact that each of them had been promoted at some point, the court said.

The court also said the workers’ “bare allegations” didn’t present circumstances that give rise to an inference of using an unlawful standard, as required by the U.S. Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981).

The statistical evidence the sanitation workers submitted didn’t provide “any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level,” the court said.

Schwartz thought this standard was too high for a motion to dismiss, telling Bloomberg BNA that “all that information they said we should have had we would have had after discovery.”

But the city’s law department was pleased by the outcome. “This decision makes clear that the plaintiffs’ allegations were insufficient to establish a claim that the Department of Sanitation discriminated when promoting staff, ” spokesman Nick Paolucci told Bloomberg BNA July 31.

The workers plan to appeal to the U.S. Supreme Court, Schwartz told Bloomberg BNA.

Advocates for Justice Legal Foundation in New York represented the sanitation workers. Attorneys from the city’s law department represented the city.

To contact the reporter on this story: Jon Steingart in Washington at

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