Statistics alone may be enough to suggest bias in a Section 1981 class action

The Second Circuit Court of Appeals’ recent decision, Burgis v. New York City Department of Sanitation, 14-1640-cv, July 21, 2015, suggests that statistics alone may be sufficient to support a class action brought pursuant to Section 1981 of the United States Code. Section 1981 provision guarantees freedom from racial discrimination in the making, carrying out and enjoyment of contractual relationships. 42 U.S.C. § 1981.

In order to successfully allege a claim of discrimination under the Fourteenth Amendment Equal Protection Clause and/or Section 1981, the plaintiffs must sufficiently demonstrate that they have been deprived of rights as a result of racial discrimination and that the defendants acted with the requisite discriminatory intent.

Employees of the New York City Department of Sanitation brought a class action suit against their employer, the City of New York (the “City”), alleging discrimination on the basis of race and/or national origin based on the City’s promotional practices. The plaintiffs alleged violations of Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment Equal Protection Clause and/or Section 1981.

In their complaint, the plaintiffs claimed that the City’s practice of relying on recommendations for promotional decisions resulted in a discriminatory effect in which minority employees were not promoted as frequently as Caucasian employees. To support these allegations, the plaintiffs included a chart of statistics that summarized the racial makeup of City sanitation employees at various supervisory levels.

The trial court dismissed the Fourteenth Amendment Equal Protection Clause and/or Section 1981claims after finding that Plaintiffs failed to sufficiently plead that the alleged discrimination was the result of an official policy, custom, or practice. The trial court also dismissed the Title VII claim, due to the plaintiff’s failure to exhaust administrative remedies. The plaintiffs then appealed to the Second Circuit Court of Appeals.

The Second Circuit Court of Appeals stated that the bare allegations in the complaint do not present circumstances giving rise to an inference of unlawful discrimination. The court found that the plaintiffs failed to include any details in their complaint as to what qualifications were considered for each position, and failed to allege anything more than bare conclusions that certain minority employees had been denied promotions based on discriminatory animus.

The plaintiffs argued that statistics alone were sufficient to support a plausible inference of discrimination. The court noted that although under certain circumstances, statistics alone may create an inference of discrimination, the plaintiffs could not rely on statistics alone in this particular instance because, in Equal Protection or Section 1981 claims, the statistics must not only be statistically significant from a mathematical perspective, but they must also be of a level that makes other plausible, non-discriminatory explanations very unlikely.

The court found that the plaintiffs’ statistical presentation simply did not meet this requirement, noting that they included only raw percentages without including details as to how many individuals were employed at various supervisory levels, the number of employees at each level, and the qualifications of the individuals who received promotions, or the number of openings at each level.

The Court refrained from ruling on the issue of whether this applies to claims of disparate impact brought under Title VII of the Civil Rights Act. Instead, the court dismissed the Title VII claim on the basis of failure to exhaust administrative remedies, finding that the administrative charges filed by the individual named plaintiffs were not reasonably related to the allegations in the Title VII disparate impact claim alleging class-wide discrimination.

While the Second Circuit seems to accept in principal that a plaintiff may successfully allege a violation of Section 1981 based on statistics alone, the court indicated that mere conclusory allegations coupled with incomplete statistical information will not satisfy a plaintiff’s burden.