Statistics Alone May Be Sufficient for Inference of Discriminatory Intent in a § 1981 or Equal Protection Case: Second Circuit | Practical Law

Statistics Alone May Be Sufficient for Inference of Discriminatory Intent in a § 1981 or Equal Protection Case: Second Circuit | Practical Law

In Burgis v. New York City Department of Sanitation, a case of first impression, the US Court of Appeals for the Second Circuit held that statistics alone may be sufficient to warrant an inference of discriminatory intent in a class action alleging employment discrimination under Section 1981 or the Equal Protection Clause of the Fourteenth Amendment, but they must be statistically significant and must make other plausible non-discriminatory explanations very unlikely.

Statistics Alone May Be Sufficient for Inference of Discriminatory Intent in a § 1981 or Equal Protection Case: Second Circuit

by Practical Law Labor & Employment
Published on 04 Aug 2015 • USA (National/Federal)
In Burgis v. New York City Department of Sanitation, a case of first impression, the US Court of Appeals for the Second Circuit held that statistics alone may be sufficient to warrant an inference of discriminatory intent in a class action alleging employment discrimination under Section 1981 or the Equal Protection Clause of the Fourteenth Amendment, but they must be statistically significant and must make other plausible non-discriminatory explanations very unlikely.
On July 31, 2015, in Burgis v. New York City Department of Sanitation, a case of first impression, the US Court of Appeals for the Second Circuit held that statistics alone may be sufficient to warrant an inference of discriminatory intent in a class action alleging employment discrimination under Section 1981 or the Equal Protection Clause of the Fourteenth Amendment, but they must be statistically significant and must make other plausible non-discriminatory explanations very unlikely. The court affirmed the dismissal of a class action brought by African-American and Hispanic sanitation workers alleging that the New York City Department of Sanitation (DSNY) promoted and favored white candidates for supervisor positions and that its recommendation process for promoting supervisors created a supervisory workforce that was not racially or ethnically representative of the sanitation worker workforce. The court found that the plaintiffs failed to present statistics sufficient to satisfy its requirements. (No. 14-cv-1640, , at *1 (2d Cir. July 31, 2015).)

Background

Andrenia Burgis, an African-American, and eight other African-American and Hispanic employees of DSNY, brought a class action against DSNY in federal district court under Section 1981, the Fourteenth Amendment's Equal Protection Clause and Title VII. The plaintiffs alleged that DSNY discriminated against them on the basis of race and national origin by promoting white candidates in a manner that led to the supervisory workforce not being racially or ethnically representative of the sanitation worker workforce. The complaint included the following statistics:
  • Over 40% of sanitation workers are African-American or Hispanic.
  • African-American and Hispanics make up:
    • 21% of supervisors;
    • 22% of General Superintendents Level 1;
    • 7% of General Superintendents Levels 2 and 3; and
    • 20% of General Superintendents Level 4.
The district court granted DSNY's motion to dismiss, finding that the plaintiffs had failed to sufficiently allege discriminatory intent on the Section 1981 and Equal Protection claims. The Title VII claim was also dismissed for failure to exhaust administrative remedies. The plaintiffs appealed the dismissal.

Outcome

The Second Circuit affirmed the dismissal of the plaintiffs' Section 1981 and Equal Protection Claims. In a matter of first impression, the court held that:
  • Statistics alone may be sufficient to warrant an inference of discriminatory intent in a class action alleging employment discrimination under Section 1981 or the Equal Protection Clause of the Fourteenth Amendment.
  • Statistics offered by a party alleging discrimination must:
    • be statistically significant; and
    • make other plausible non-discriminatory explanations very unlikely.
  • The plaintiffs' statistics showing percentages of African-Americans and Hispanics in various supervisory positions at DSNY did not satisfy that standard.
The Second Circuit noted that:
The Second Circuit found that:
  • The complaint contained only bare allegations about each individual plaintiff and those allegations failed to support a finding that the defendants intentionally discriminated against them. All of the plaintiffs had been promoted to a supervisory position at some point, and more than half of them has been promoted to General Superintendent Level 1.
  • The plaintiffs' statistics were not statistically significant and did not make other plausible non-discriminatory reasons highly unlikely because they:
    • showed only raw percentages of white, African-American and Hispanics at each employment level, not the number of individuals at each level;
    • did not show the qualifications of individual applicants and of those who were ultimately hired at each position;
    • did not show the number of openings at each employment level; and
    • showed that the racial composition of level 4 superintendents was about the same as that of level 1 superintendents.
The Second Circuit also affirmed the dismissal of the plaintiffs' Title VII claim for failure to exhaust administrative remedies.

Practical Implications

As a result of the Second Circuit's decision in Burgis, parties in this circuit should be aware that statistics alone may be sufficient to warrant an inference of discriminatory intent in a class action alleging employment discrimination under Section 1981 or the Equal Protection Clause of the Fourteenth Amendment, if they satisfy the circuit's requirements.