The Center for Individual Rights represented a group of New York City school custodial engineers in a landmark challenge to efforts by the federal government to retroactively redistribute employment seniority on the basis of race and gender. The proposed seniority plan – used in awarding promotions and retirement benefits – would have favored minority and women employees, based solely on statistical imbalances between an employer’s workforce and the labor pool at large. Throughout the litigation, CIR contended that race and gender preferences must be narrowly tailored to remedying particular discriminatory policies.
The case was the first in the country to challenge the controversial tactic of settling employment discrimination charges with a consent decree that strips employees of seniority without allowing them – or anyone – an opportunity to contest the original allegations of discrimination. Use of a consent decree makes it possible for the government to avoid having to prove its allegations, which may consist of little more than bare statistical disparities.
Early on, CIR established an important legal precedent, namely the right of innocent employees to intervene as parties in cases such as this in order to force the Department of Justice to prove its allegations of discrimination before a court can sign off on a consent decree that strips them of their seniority in favor of someone else.
In October, 2008, the case headed to the influential Second Circuit Court of Appeals, where CIR argued that mere numerical disparities do not constitute adequate proof of discrimination and that a consent decree must be limited to providing relief to actual victims of alleged discrimination.
A political settlement that ignores individual rights
The case began in 1996, when the Department of Justice (DOJ) under President Clinton sued the City of New York and the Board of Education (the “City”) for alleged discriminatory employment policies in the hiring of school custodial engineers. The DOJ cited statistics indicating that women and minorities were not represented among custodial engineers in proportion to their presence in the general population. But it never proved that the disparities were the result of discriminatory employment practices by the City defendants.
Rather than challenge the DOJ’s aggressive use of statistics, the City entered into a consent decree. The City agreed to retroactively grant seniority to women and minority custodial engineers, effectively lowering the seniority of white male custodial engineers, including CIR’s client John Brennan.
The City calculated that it could dispose of the affair without paying monetary damages and, at the same time, claim that the resulting race and gender preferences were “forced upon it” by the court – rather than by its own negligence in not contesting DOJ’s expansive allegations.
John Brennan fights back
While the settlement was still pending before the U.S. District Court and looking very much like a “done deal,” John Brennan and several other custodial engineers asked CIR to represent them in a legal effort to intervene in the case. They wanted to do what the City could have done and should have done in the first place, namely, challenge the DOJ’s idea that mere numerical disparities somehow “proved” discrimination.
CIR filed a motion to intervene, which was promptly denied by the District Court. CIR appealed to the U.S. Court of Appeals for the Second Circuit. On August 3, 2001, the appeals court ruled in Brennan’s favor, after noting that “the entire burden of the settlement . . . is upon individuals like appellants.” The Second Circuit vacated both the district court’s denial of intervention and its approval of the settlement agreement. The case was remanded back to the lower court so that John and his colleagues could challenge the discriminatory agreement.
Returning to the District Court, CIR secured several useful factual findings in opinions issued in September 2006 and May 2008. The larger issue of the constitutionality of the City’s proposed remedy remained to be decided on appeal to the Second Circuit.
CIR challenges DOJ’s claims
DOJ and the City maintained that the mere existence of a numerical underrepresentation amounted to evidence of discrimination against minorities and women, and that such “evidence” was sufficient to provide seniority preferences to minority and women employees. More specifically, they alleged “recruitment discrimination,” or the idea that somehow the City was responsible for the fact that not “enough” women and minorities were interested in becoming school custodial engineers. They also pointed to the employment exam as a source of discrimination. As with the recruitment claim, their only “evidence” of discrimination was the existence of a numerical disparity between the scores of different groups of test takers.
Moreover, the City’s proposed remedy for the alleged discrimination was unconstitutionally overbroad. Nothing about the remedy presented a narrowly-tailored solution to discriminatory practices, because not a single beneficiary of the remedy could have been a victim of the alleged discrimination; they had all received jobs as custodial engineers.
If, as the City claimed, the discrimination existed at the level recruitment, then the true victims of discrimination would never have been hired – or even have applied. Individuals received retroactive seniority not because they themselves had experienced any discrimination, but rather because someone of the same race or gender may have experienced discrimination.
Even assuming the City had engaged in discriminatory behavior, the Fourteenth Amendment does not allow government agencies to remedy past discrimination by enacting countervailing forms of discrimination. Under the Fourteenth Amendment, remedial preferences must be narrowly tailored to correcting particular discriminatory policies or acts. In this case, the City failed to identify and prove the existence of specific methods and instances of discrimination. Instead, it proposed to direct a generalized compensation at all minorities as an acceptable substitute for a focused solution.
Worst of all, the City’s remedy shifted the cost from the City’s coffers to the livelihoods of white male custodial engineers in the New York public school system. Retroactively increasing seniority for minorities cost the City nothing, but it cost John Brennan and many others the seniority they had earned.
Settlement Agreement Reached
After years of litigation, the United States Department of Justice and New York City reached a settlement agreement with the John Brennan and the other plaintiffs. The Second Circuit had ruled that before awarding benefits on the basis of race and sex, the government needed to have a strong basis in evidence that each beneficiary likely had been a victim of discrimination. Rather than produce such evidence, the government settled the case.