New York Law Review

Tag: statistical evidence

  • CUNY-Hostos Community College v. State Human Rights Appeal Board, 59 N.Y.2d 69 (1983): Statistical Evidence and Unlawful Employment Quotas

    59 N.Y.2d 69 (1983)

    Statistical evidence alone is insufficient to prove unlawful employment discrimination based on a quota system; there must also be proof of employment practices that warrant the conclusion that discrimination exists.

    Summary

    CUNY-Hostos Community College appealed a finding of unlawful discrimination for discharging an employee, Moses Harary, allegedly to maintain ethnic quotas during a retrenchment. Harary claimed his discharge was based on race, color, and ethnicity. The New York Court of Appeals reversed, holding that the statistical evidence presented, showing the ethnic makeup of employees before and after the retrenchment, was insufficient to prove the college implemented an illegal quota system. The court emphasized that the statistical analysis was more a report of the results of the retrenchment plan rather than a design, and that there was no evidence of discriminatory practices or that the college required the discharge of whites other than the complainant.

    Facts

    Moses Harary, a Jewish American, was hired as associate dean of administration and management planning at CUNY-Hostos in 1972. In 1975, due to a financial crisis, CUNY directed its units to reduce expenses, prioritizing reductions in administrative positions. In August 1975, the college’s president told Harary he was not satisfied with his performance and advised him to seek new employment. Harary was given notice in July 1976 that he would not be reappointed. A retrenchment plan was implemented, leading to the discharge of 15 employees, including Harary.

    Procedural History

    Harary filed a charge with the State Division of Human Rights, alleging unlawful discrimination. The Division initially found no credible evidence of malice based on Harary’s religion or national origin. However, it later found the college guilty of unlawful discrimination, concluding the retrenchment plan was a deliberate effort to perpetuate unlawful quotas. The Human Rights Appeal Board and the Appellate Division affirmed. The college then appealed to the New York Court of Appeals.

    Issue(s)

    Whether substantial evidence supported the Division of Human Rights’ determination that CUNY-Hostos Community College implemented an illegal quota system in its retrenchment plan, thereby unlawfully discriminating against Moses Harary.

    Holding

    No, because the statistical evidence presented was insufficient to establish a prima facie case of discriminatory discharge based upon a quota. The court found that there was no proof of employment practices which warrant the conclusion that discrimination existed.

    Court’s Reasoning

    The court stated that while statistics can be relevant in discrimination cases, they must be used with other objectively established evidence to permit an inference of unintentional discrimination. A statistical predicate alone is insufficient. The court found the statistical analysis presented was more a report of the results after formulating the plan of retrenchment than a design for retrenchment. The court noted that the college had an established affirmative action policy and that its president was aware of the need to avoid penalizing any minority group during retrenchment. The Court quoted, “The consequences of this `Retrenchment Plan’ were discussed with the Affirmative Action Office. No significant difference will take place in the ethnic distribution of the faculty as a result of this plan”. It held that this statement and the statistical analysis “far from being proof per se of unlawful discrimination, was entirely consistent with his sensitivity to discrimination as the law and university policy required him to be.” The court also considered the college’s historical affirmative action hiring practices, which contributed to faculty diversity. The dissent argued that the university carried affirmative action too far when it employed the practice in firing employees to maintain ethnic balance and that the president’s own statement was a concession that the ethnic makeup was considered in the retrenchment plan. Judge Fuchsberg, in a separate dissent, emphasized the narrow scope of judicial review in human rights cases and argued that the agency’s determination was supported by substantial evidence, including the nearly perfect correlation between the pre- and post-retrenchment ethnic distribution of the faculty.

  • Batista v. State Division of Human Rights, 46 N.Y.2d 38 (1978): Establishing Discrimination Through Statistical Evidence

    Batista v. State Division of Human Rights, 46 N.Y.2d 38 (1978)

    Statistical evidence showing a pattern of replacing minority employees with white employees can establish a prima facie case of discrimination, shifting the burden to the employer to provide a legitimate, non-discriminatory reason for the employment decisions.

    Summary

    Roberto Batista and Theodore Fletcher, both minority school administrators, were removed from their positions as interim acting principals. They alleged racial discrimination. The New York State Division of Human Rights found unlawful discrimination based on statistical evidence showing a pattern of replacing minority principals with white principals. The New York Court of Appeals reversed the Appellate Division’s annulment, holding that the statistical evidence was sufficient to establish a prima facie case of discrimination and that the employer failed to provide a legitimate, non-discriminatory reason for the removals. The case highlights the importance of statistical evidence in discrimination cases.

    Facts

    Roberto Batista, of Puerto Rican heritage, and Theodore Fletcher, who is black, were appointed as interim acting principals in Community School District No. 1.
    Due to non-compliance with a procedural directive (Special Circular No. 30), their appointments were reclassified, making them interim acting principals without vested rights.
    The school board subsequently removed Batista and Fletcher, assigning them to other duties.
    They filed complaints with the Division of Human Rights, alleging racially motivated removals, claiming they were replaced by white principals.

    Procedural History

    The Division of Human Rights found the removals discriminatory and granted injunctive relief and compensatory damages.
    The State Human Rights Appeal Board affirmed the Division’s orders.
    The Appellate Division annulled and vacated the orders, finding insufficient evidence.
    The New York Court of Appeals reversed the Appellate Division’s decision, reinstating the Appeal Board’s orders.

    Issue(s)

    1. Whether statistical evidence demonstrating a pattern of replacing minority principals with white principals is sufficient to establish a prima facie case of discrimination.
    2. Whether the employer provided a legitimate, non-discriminatory reason for the removal of the minority principals, sufficient to rebut the prima facie case of discrimination.

    Holding

    1. Yes, because statistical evidence can demonstrate a pattern of discrimination, especially when direct evidence is difficult to obtain.
    2. No, because the employer’s asserted justification (poor job performance) was not substantiated and appeared pretextual.

    Court’s Reasoning

    The Court of Appeals emphasized that discrimination is often subtle and difficult to prove directly. Therefore, statistical evidence is valuable in demonstrating a pattern of discriminatory conduct.
    The Court noted that the statistical evidence showed that all principalship vacancies were filled with white persons during the relevant period, and only minority principals were removed (with one exception).
    This evidence was sufficient to establish a prima facie case of discrimination, shifting the burden to the employer to provide a legitimate, non-discriminatory reason for the removals.
    While the employer claimed poor job performance, the Court found that this justification was not supported by the evidence and may have been a pretext for discrimination. Crucially, there was “no evidence that such criticism was considered by the Community School Board or played any part in its decisions to remove Fletcher and Batista.”
    The Court cited 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180, stating that “where there is room for choice, neither the weight which might be accorded nor the choice which might be made by a court are germane.” The Court’s role is limited to determining if substantial evidence supports the Division’s determination.
    The Court also clarified the standard for rebutting a prima facie case of discrimination, stating that the employer must show “that the employee was terminated for some independently legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination” citing Matter of Pace Coll, v Commission on Human Rights of City of N. Y., 38 NY2d 28, 40.

  • NYC Bd. of Ed. v. Batista, 54 N.Y.2d 379 (1981): Proving Discrimination Through Statistical Evidence

    New York City Board of Education v. Batista, 54 N.Y.2d 379 (1981)

    Statistical evidence showing a pattern of removing minority employees and replacing them with white employees can establish a prima facie case of unlawful discrimination, shifting the burden to the employer to prove a legitimate, non-discriminatory reason for the employment action.

    Summary

    Roberto Batista and Theodore Fletcher, minority school administrators, claimed racial discrimination after being removed from their positions. The NY State Division of Human Rights found the NYC Board of Education discriminated against them. The Court of Appeals reviewed the decision, focusing on statistical evidence. The court held that statistical evidence demonstrating a pattern of replacing minority principals with white principals established a prima facie case of discrimination. The burden then shifted to the Board of Education to provide a legitimate, non-discriminatory reason for the removals, which they failed to do adequately. Therefore, the Court of Appeals reinstated the Human Rights Appeal Board’s orders.

    Facts

    Batista (Puerto Rican) and Fletcher (Black) were appointed interim acting principals in Community School District No. 1 in 1973. In 1974, the Board of Education declared their appointments invalid due to non-compliance with a procedural requirement (Special Circular No. 30). They were reclassified as “interim acting principals.” Subsequently, the school board removed Batista and Fletcher from their positions and assigned them other duties.

    Procedural History

    Batista and Fletcher filed complaints with the Division of Human Rights, alleging racial discrimination. The Division found unlawful discrimination and the State Human Rights Appeal Board affirmed, granting relief and damages. The Appellate Division vacated the board’s orders, finding insufficient evidence. The New York Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether statistical evidence demonstrating a pattern of removing minority principals and replacing them with white principals is sufficient to establish a prima facie case of unlawful discrimination.

    Holding

    Yes, because such statistical evidence can demonstrate a pattern of discrimination, shifting the burden to the employer to provide a legitimate, non-discriminatory reason for the employment action.

    Court’s Reasoning

    The court emphasized that discrimination is often subtle and difficult to prove directly. Therefore, statistical evidence plays a crucial role. The court found the statistical evidence showed that the school board replaced black and Hispanic principals with white principals. Specifically, the court pointed out that of the six interim acting principals (two Puerto Rican, two Black, and two White), the board removed both Black and Puerto Rican principals, and one white principal who was fluent in Spanish, while the remaining white interim acting principal was not removed. All vacancies were filled by white individuals. This evidence was sufficient to establish a prima facie case of discrimination.

    The burden then shifted to the Board of Education to rebut the discrimination claim. The Board argued that Batista and Fletcher were removed due to poor job performance. However, the court noted that the Board failed to show this criticism influenced the removal decisions. The court cited Pace Coll. v Commission on Human Rights of City of N. Y., 38 N.Y.2d 28, 40 stating that the employer needs to show “that the employee was terminated for some independently legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination”.

    Because the evidence was conflicting, the Division of Human Rights had wide latitude in weighing the evidence. The Court of Appeals’ review was limited to whether substantial evidence supported the Division’s determination. Finding ample support, the Court of Appeals reversed the Appellate Division and reinstated the State Human Rights Appeal Board’s orders. The court explicitly stated that “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means” quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 183.

  • People v. Allweiss, 48 N.Y.2d 40 (1979): Admissibility of Statistical and Experimental Evidence

    People v. Allweiss, 48 N.Y.2d 40 (1979)

    Statistical and experimental evidence is admissible only if a proper foundation is laid establishing the reliability of the methodology and similarity of test conditions to the actual circumstances of the case.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order insofar as it concerned a conviction for murder in the second degree and criminal possession of a weapon. The court found that the trial court erred in admitting statistical evidence about suicide victims’ gun handling and experimental evidence involving test-firing the murder weapon at objects, including a rabbit covered with human hair. The prosecution failed to establish a proper foundation for the reliability of the statistical study and the similarity of the experimental conditions to the actual circumstances of the shooting. The court ordered a new trial on the murder and second-degree weapon possession charges and a resentencing for the third-degree weapon possession conviction.

    Facts

    The defendant was convicted of murder in the second degree and criminal possession of a weapon. The prosecution introduced evidence of a study of suicides indicating how far a suicide victim typically holds a gun from their body. Additionally, the prosecution presented experimental evidence from test-firing the weapon at various objects, including a rabbit covered with human hair to simulate the victim’s scalp. The defendant objected to both the statistical and experimental evidence.

    Procedural History

    The defendant was convicted in the trial court. The Appellate Division reversed the conviction for criminal possession of a weapon in the second degree on the law alone. The People appealed the reversal of the weapon possession conviction, and the defendant appealed the murder conviction and sought resentencing on a related weapon possession charge to the Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in admitting statistical evidence about suicide victims’ gun handling without a proper foundation establishing the reliability of the study.
    2. Whether the trial court erred in admitting experimental evidence involving test-firing the murder weapon at objects, including animal tissue, without establishing a substantial similarity between the test conditions and the actual circumstances of the shooting.

    Holding

    1. Yes, because the People failed to lay a proper foundation showing that the results of the statistical study were reliable.
    2. Yes, because the People failed to establish a substantial similarity between the skin and tissue of the test subject and that of a human victim.

    Court’s Reasoning

    The Court of Appeals found that the statistical evidence regarding suicide victims was inadmissible because the prosecution failed to establish a proper foundation showing that the results of the study were reliable. The court noted that “[t]here is nothing in the record, however, to indicate that the sampling was representative, that reliable criteria were employed or that the conclusions on which the statistics were based were in fact accurate.”

    Regarding the experimental evidence, the court found that the test-firing of the weapon at various objects was also problematic. Specifically, the court took issue with the use of a rabbit covered with human hair to simulate the victim’s head. The court stated, “This obviously was not the kind of neutral test designed only to produce the limited results the People now contend. If at the new trial the People offer to show the effects of a gun shot from this weapon on animal tissue, they must first establish that there is a substantial similarity between the skin and tissue of the test subject and that of a human victim.” This emphasizes the requirement for the test to be as similar as possible to the actual event for the results to be relevant and admissible.

    The court further reasoned that because the charge of criminal possession of a weapon in the second degree was factually related to the murder charge, the reversal of the murder conviction should also require a new trial on the charge of criminal possession of a weapon in the second degree. The court ordered the case be remitted to the Appellate Division for further proceedings on that charge.

  • New York City Commission on Human Rights v. Pace College, 47 N.Y.2d 704 (1979): Sufficiency of Evidence for Sex Discrimination in Faculty Tenure Decisions

    New York City Commission on Human Rights v. Pace College, 47 N.Y.2d 704 (1979)

    Statistical data alone is insufficient to prove a pattern of sex discrimination in academic tenure decisions; however, evidence that an employee was treated differently due to their gender, even if not overtly discriminatory, can support a finding of unlawful discrimination.

    Summary

    The New York City Commission on Human Rights appealed a decision overturning its finding that Pace College (now University) discriminated against women faculty, specifically Dr. Winsey, in promotion and tenure. The Court of Appeals modified the order, holding that while statistical data presented was insufficient to prove a widespread pattern of discrimination, there was sufficient evidence to support the Commission’s finding that Dr. Winsey was discriminated against due to her sex and assertive advocacy for her rights, which was viewed negatively because she was a woman.

    Facts

    Dr. Winsey, a faculty member at Pace College, filed a complaint alleging sex discrimination in promotion and tenure decisions. She held a doctorate in cultural anthropology and a master’s degree in speech and human relations. She was initially hired as an adjunct professor in 1966 and became a full-time associate professor in 1968 in the Social Science Department after failing to secure a position in the Speech Department. She was informed by the head of the Speech Department that he did not like women around him because he could not use “four-letter” words and that he could not pay her as much as a man because it would “demoralize” his department. Despite positive evaluations and a heavy workload, her attempts to be promoted to full professor were unsuccessful, and she was ultimately given a terminal contract.

    Procedural History

    The New York City Commission on Human Rights found Pace College guilty of sex discrimination. Special Term overturned the Commission’s determination. The Appellate Division affirmed the Special Term’s decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the statistical evidence presented was sufficient to support the Commission’s finding of a pattern of discrimination against women faculty at Pace College.

    2. Whether there was sufficient evidence to support the Commission’s finding that Dr. Winsey was individually discriminated against because of her sex.

    Holding

    1. No, because the statistical data was superficially plausible but failed to account for historical reasons and a proper pool of eligible candidates.

    2. Yes, because there was sufficient evidence that Dr. Winsey was treated differently than a similarly situated man would have been, due to her gender and assertive advocacy for her promotion.

    Court’s Reasoning

    The Court held that while statistics are helpful in determining discriminatory employment practices, a statistical predicate alone is not enough, especially when historical reasons exist for statistical bias. The Court emphasized the fallacy of drawing employment ratios from a large group without limiting it to those eligible for hiring or appointment. The Court noted the Commission failed to adequately define the pool of eligible candidates for comparison.

    However, regarding Dr. Winsey’s individual complaint, the Court found sufficient evidence to support the Commission’s finding of discrimination. Explicitly discriminatory comments made to and about her, coupled with her termination after she pursued promotion, suggested that she was treated differently due to her sex. The court reasoned that Pace’s justification that Dr. Winsey was a “troublemaker” was pretextual. The Court stated, “What Dr. Winsey did to cause her termination would not have been considered ‘troublesome’ if she had not been a woman.”

    The Court emphasized that those who discriminate unlawfully rarely do so openly, instead resorting to subtle tactics and mixed motives. In this case, the evidence of Dr. Winsey’s non-promotion had this character, and the commission was entitled to weigh the evidence and draw permissible inferences.

    The Court quoted Judge Fuld in Matter of Holland v Edwards, “those who discriminate unlawfully are not likely to do so in open, plainly-appearing fashion… Instead, there is likely to be covert resort to subtle tactics and the pretext of intermingled motives and reasons to obscure the substantial cause.”