White janitors may intervene in civil rights case, 2nd Circuit rules

By Michael A. Riccardi

New York Law Journal, August 6, 2001

Three white male custodians in New York City’s schools have standing to challenge an agreement in which the city’s Board of Education has promised to confer greater seniority on female and minority workers, a panel of the 2nd U.S. Circuit Court of Appeals has decided.

Reversing a decision that had barred the white male custodians from intervening against the settlement, the 2nd Circuit ruled Friday that the challengers had a property-related interest in their seniority status. Since that status could potentially be undermined by the new policy, they had standing to bring the challenge.

The three employees sought to intervene in a dispute between the U.S. Department of Justice and the City Board of Education over alleged discrimination in the management of school custodians. The federal government and Board of Education had settled their differences and entered into an agreement that took into account the race, ethnicity and gender of employees. The three intervenors said that the agreement threatened to impair their seniority rights.

The settlement agreement at issue in Brennan v. N.Y.C. Board of Education, 00-6077, committed the school board to grant permanent civil service status to 43 minority and female custodians who previously had only “provisional” status.

The Justice Department found that the Board of Education had failed to aggressively recruit females and minorities, failed to hire and promote females and minorities, and relied on civil services tests — which had a negative, disparate impact on blacks and Hispanics — to determine the order of hiring and promotion.

All of those practices hindered female and minority custodians in getting jobs with the Board of Education and securing seniority, the federal government said. Seniority, the 2nd Circuit noted, is key to promotion and assignment to more desirable and higher-paying jobs within the school system.

The white male custodians complained that the new arrangement, in one single stroke, would water down the seniority that they had already earned.

Magistrate Judge Robert M. Levy of the U.S. District Court for the Eastern District of New York had denied the employees’ motion to intervene, ruling that seniority was presumed to be the product of the school board’s previous discriminatory employment practices. Advantages conferred by an unlawful discriminatory practice, Levy had reasoned, cannot be property interests that are protected by federal law.

But a unanimous 2nd Circuit panel reversed Levy and allowed the employees into the case, holding that the intervenors’ employment status would be hurt by the terms of the agreement, and that they should be included in the dispute between the federal government and the school board.

Judge Ralph K. Winter of the 2nd Circuit wrote for the panel that while the settlement agreement is entitled to a presumption of validity, it does not answer the question of whether or not the white male intervenors were the beneficiaries of illegal discrimination.

“[I]t is precisely the existence or non-existence of prior discrimination and its relationship to [the custodians’] present status that they want to contest by intervening as parties,” Winter wrote.


Judge Levy also ruled that the white male custodians had no property interest in seniority to protect.

But the appeals court noted that seniority rights are “for many purposes cognizable rights,” since a seniority system establishes a hierarchy for granting employment rights and benefits. Just because it is difficult to determine which rights and benefits may be lost because of an adjustment in the Board of Education’s seniority system, the court may not simply ignore seniority as an interest related to property.

“The effects of a loss of relative seniority are not easily forecast and may not even be perceived as they happen,” Winter wrote. But that does not mean they are “too speculative and remote” to merit legal protection. The 2nd Circuit said that the challengers should be allowed to conduct discovery in the Eastern District court, and the court remanded the case for litigation on the merits.

Joining Winter were Judges Richard J. Cardamone and Rosemary S. Pooler.

Representing the intervening employees was Michael E. Rosman of the Center for Individual Rights in Washington, D.C. Assistant Corporation Counsel Alan Beckoff handled the case for the City’s Board of Education. And Lisa Wilson Edwards of the U.S. Department of Justice’s Civil Rights Division represented the federal government in the case.