ACLU Represents New York City Custodial Workers in Discrimination Case
In 1996, the U.S. Department of Justice brought suit against the New York City Board of Education, alleging that the Board had long discriminated against women, African-Americans, Hispanics, and Asians in hiring custodians, by failing to recruit them as custodians and by giving civil service tests for the job that discriminated against African-Americans and Hispanics.
In 1999, the DOJ and Board entered into a settlement agreement. At that time, many of the women, African-Americans, Hispanics, and Asians working as custodians were employed only provisionally, meaning they could be fired at any time and they could not compete for various job benefits. The settlement agreement provided that these individuals would all become permanent civil service employees, and granted them retroactive seniority. Finally, the settlement guaranteed that if any of its provisions were challenged, the Justice Department and the Board of Education would defend the agreement.
But when several white male custodians represented by the Center for Individual Rights did challenge the agreement, the Justice Department, under the leadership of then-Attorney General John Ashcroft, reneged on its promise to defend its clients against this new challenge.
On behalf of 25 of the female and minority custodians abandoned by the Justice Department, the ACLU Women's Rights Project (WRP) intervened to protect the awards of permanent jobs and seniority provided in the settlement agreement. In October 2005, WRP argued before the court that the settlement agreement in this case was lawful. In September 2006, the judge issued a decision stating that the permanent appointments and retroactive seniority awarded to female custodians did not violate the Constitution or Title VII, though the women cannot rely on their retroactive seniority in the event of layoffs in the custodial workforce. Because race-based affirmative action is held to a higher standard than gender-based affirmative action, the court held that men of color who didn’t take one of the discriminatory examinations could keep their jobs but would lose the seniority they received under the agreement. WRP immediately sought reconsideration of the judge's decision to strip many African-American and Hispanic male custodians of their seniority.
On August 20, 2007, the court heard oral testimony in an evidentiary hearing on WRP's motion for reconsideration. On September 14, 2007, we filed post-argument briefs. We expect a final decision shortly.
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