In Burgis v. New York City Dept. of Sanitation (2d Cir. July 31, 2015), a putative class action race discrimination case brought by members of the NYC Dept. of Sanitation, the Second Circuit affirmed the dismissal of plaintiffs’ claims under the Fourteenth Amendment’s Equal Protection Clause and 42 USC 1981 and Title VII of the Civil Rights Act of 1964.
The court held that plaintiffs failed to sufficiently allege discriminatory intent, as required under Section 1981. It explained:
Without any specificity as to the qualifications considered for each position and without any reference to specific statements or individual circumstances that suggest discriminatory treatment, plaintiffs’ allegations do not support a finding that defendants acted with a discriminatory purpose. For all that one can tell from the SAC (plaintiffs’ “third bite at the apple”), it is equally possible that plaintiffs have not been promoted for valid, non-discriminatory reasons.
Turning to the plaintiffs’ argument based on statistics, the court noted that whether “statistics alone may be sufficient to warrant a plausible inference of discriminatory intent if they show a pattern or practice that cannot be explained except on the basis of intentional discrimination … is an issue of first impression for this Circuit in the context of a putative class action alleging employment discrimination under § 1981 and/or the Equal Protection Clause.”
While statistics alone may be sufficient, “to show discriminatory intent in a § 1981 or Equal Protection case based on statistics alone, the statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely.”
Here, plaintiffs failed to meet this standard:
Among other shortcomings, the statistics provided by plaintiffs show only the raw percentages of White, Black, and Hispanic individuals at each employment level, without providing any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level.