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The United States Court of Appeals for the Second Circuit Finds In Favor of the NYC Department of Sanitation in a Race Discrimination Claim

Yarelyn Mena and Edgar M. Rivera, Esq.

On July 31, 2015, the United States Court of Appeals for the Second Circuit dismissed race and national origin discrimination claims against the New York City Department of Sanitation (DSNY). The plaintiffs used statistics alone to attempt to show that the DSNY discriminated against employees of color for management positions.

Each plaintiff believed that he or she was passed over for open positions, for which they were qualified, for lesser qualified White employees. For example, Andrenia Burgis, a Black employee, who was employed with DSNY since 1998, was promoted to Superintendent, and then to General Superintendent Level 1 in 2007. Two years later, Ms. Burgis had met all the prerequisites to continue advancing her position, but she was not promoted. In 2012, Ms. Burgis again applied for promotion to General Superintendent Level 2 but by that time, DSNY already had promoted less qualified White employees to the upper level superintendent positions instead of her.

Plaintiffs chiefly relied on statistics to show that DSNY intended to discriminate against its employees of color.  In 2007, 81% of White employees were supervisors, while a mere 11% of Black employees, and 10% of Hispanic employees, held the same position. The differences became more pronounced as employees moved up the ladder; for example, 91% of Whites held General Superintendent Level 2 and 3 positions, and a bare 5% of Blacks and 3% of Hispanics held the same position.

The Second Circuit Court found, among things, that plaintiffs failed to show that there was any specific instance of discrimination, holding that discriminatory intent based on statistics alone must “be statistically significant on a mathematical sense” and “must absolve of a level that makes other plausible non-discriminatory explanations very unlikely.” As such, the court found that plaintiffs failed to allege statistics that met this standard. The court further found that plaintiffs failed sufficiently to show differences in qualifications between employees of color and White employees with respect to the management positions at issue and, if in fact there were differences, that they stemmed from discriminatory intent on the part of the DSNY.  The court noted the fact that some plaintiffs were promoted several times, undermined their claims.

Although the court did not side with the plaintiffs in this case, it is crucial that employees speak out about the lack of promotions and advancement for employees of color.  Despite an employer’s intent, whether unlawfully discriminatory in nature, minority employees often are overlooked when companies use an informal selection process for promotions that customarily are decided by White supervisors who already hold the majority of management positions.

If you believe your employer has discriminated against you, please contact The Harman Firm, LLP.

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