U.S. v. New York City Board of Education

November 15, 2013

ACLU Represents New York City Custodial Workers in Discrimination Case

In 1996, following a multi-year investigation, 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 for New York City public schools, 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 the NYC Board of Education 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 challenged 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 2005, WRP argued in federal court that the settlement agreement in this case was lawful. The federal court issued a series of decisions stating that the permanent appointments and retroactive seniority awarded to female custodians did not violate the Constitution or Title VII, though the women could not 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. The parties cross-appealed and the case went to the federal Court of Appeals for the Second Circuit, which issued a detailed opinion in 2011 setting forth the standard for determining whether the settlement agreement had been lawful and remanding the case to the district court for further proceedings.

Following intensive negotiations, all parties reached a new settlement agreement in November 2013. The 2013 settlement agreement safeguards the jobs of the custodians that WRP represents. It also preserves their ability to use their retroactive seniority to transfer to bigger schools as they continue their careers, although it adjusts the seniority dates that they would use in the event of layoffs. The parties have submitted this new agreement to the court for approval.

After years of litigation, the parties have reached an agreement that safeguards our clients' jobs and their ability to transfer to bigger schools as they continue in their careers. This settlement is a fair resolution for our clients -- women custodians and custodians of color - who have continued to work hard and successfully to keep New York City's school buildings up and running throughout this case.

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