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Oversight Hearing: ReNika Moore Testimony

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Tuesday, October 20, 2009

Testimony by ReNika Moore
Assistant Counsel,
NAACP Legal Defense & Educational Fund, Inc.

(Co-counsel for the plaintiffs in Wright v. Stern)

Oversight Hearing:
“More Than One Year After Wright v. Stern:
Ensuring No Future Discrimination in the
Parks Department.”

Before the Committee on Civil Rights and the
Committee on Parks and Recreation

Tuesday, October 20, 2009
1:30 p.m.
City Hall, New York, NY

Good Afternoon Chairman Seabrook and Chairwoman Foster, and members of the Committee on Civil Rights and the Committee on Parks and Recreation. Thank you for the invitation to testify here today. My name is ReNika Moore and I am Assistant Counsel with the NAACP Legal Defense & Educational Fund, Inc.

The Legal Defense Fund is the nation’s oldest civil rights legal organization. We were founded by Thurgood Marshall here in New York City, and we have challenged racial discrimination against African Americans and other people of color for over sixty years. Along with our co-counsel, the Legal Defense Fund represents the plaintiffs in the Wright v. Stern lawsuit.

The Wright v. Stern lawsuit settled a year-and-a-half ago, and I am here to speak about the Parks Department’s compliance with the settlement. While we acknowledge that the Parks Department has—with some exceptions—followed the letter of the settlement, we believe the Department has gone no farther than what is required. We question their true commitment to remedying the wrongs of the past and ensuring a workplace free from discrimination and because of this we have serious concerns about continued obstacles faced by workers of color within the Department.

My remarks today will address: (1) our areas of concern regarding the Department’s compliance with the settlement; (2) the challenges to EEO enforcement in other City agencies; and (3) what the City can do to address these challenges.

Let me begin with some background on Wright v. Stern. This lawsuit was filed by African American and Hispanic Parks workers in 2001 to challenge widespread discrimination in pay, promotion, racially segregated job assignments, and routine retaliation against classmembers who complained of discrimination. After more than six years of divisive litigation and a year of intense mediation, the plaintiffs and the City reached a settlement in May 2008 that provided for comprehensive changes to the Parks Department’s employment practices that were intended to ensure fair and equal job opportunities for all Parks workers regardless of race or ethnicity. The settlement also provided for more than $12 million in backpay and compensatory damages to workers who had been discriminated against. At this time the settlement proceeds in large part have been distributed to all eligible classmembers who submitted releases within the established submission period. In total, approximately 2,275 classmembers received some monetary relief from the settlement.

The Parks Department has taken positive steps toward reducing discrimination but more is needed.

The Parks Department has met its reporting requirements under the settlement and taken a number of constructive steps toward improving equal opportunity, including revamping its process for filling job vacancies and reinstating a managerial training program that former Commissioner Stern had abolished. In July of this year, after we concluded that the Settlement’s required adverse impact analysis conducted by Parks showed an impermissible selection rate for minorities, the City agreed to conduct a content validity study for the Parks Recreation Manager (“PRM”) position. We were encouraged by the Parks Department’s undertaking because of our concerns about ongoing discrimination in the interview and promotion process for managerial-level positions. However three months later, the City has yet to hire an expert to conduct the study, raising concerns about delays in the completion of the study. Such delays have real-life consequences for workers of color seeking these jobs but who are unfairly and unlawfully excluded.

There are other areas for concern. For example, the settlement called for the creation of an Advisory Committee, a five-person committee with representatives of the class, Parks’ General Counsel and Parks’ EEO officer. The Committee’s purpose is to address employment discrimination and retaliation within the Department. In the Committee’s first year, which came to a close this month, the class was represented by three of the named plaintiffs from Wright v. Stern, who together have more than 50 years of service to the Parks Department and led the effort to improve minority opportunities both from within the Department and through litigation. These three representatives resigned from the Advisory Committee earlier this month out of frustration and disappointment in the Advisory Committee and because they felt they were being subjected to retaliation because of their role on the Committee.

The classmembers on the Committee found that their questions, concerns, and suggestions were ignored or languished with no follow-up. They found that meetings were rushed without enough time to address all topics on the agenda. Class members on the Committee also felt targeted for retaliation because of their outspoken advocacy on behalf of minority workers. During their term on the Committee, two of the three classmembers were called in to the Park’s Advocate’s Office or the Department of Investigation to respond to baseless accusations for infractions – infractions that, even if true, should not have warranted the full-scale investigations they were subjected to. Classmembers’ questions about who made the complaints and their requests to review the evidence supporting the specious allegations went unanswered.

Furthermore, we have observed little progress since we first filed Wright v. Stern, in the numbers of African Americans and Hispanics in high level Parks Department positions. We continue to see all-white or nearly all-white pools of candidates interviewed for Director-level and other high-ranking positions. For example, during the last reporting period, six white applicants and no minority applicants were interviewed for one Chief of Operations position, a historically all-white title, and only three white candidates and no minorities were interviewed for Director of Public Information. In many instances, Parks only posted the job vacancy in question once and did not repost the job nor did they open the position to external applicants despite the small number of applicants, particularly non-white applicants. In light of the history of under-representation of African Americans and Hispanics in these and other high-level positions, we believe Parks should take further steps to ensure at a minimum that a diverse pool of candidates is interviewed. Such steps include reposting of job announcements and training and recruiting qualified minority candidates where the applicant response is low and/or lacks any or very few applicants of color.

In the hiring context, we know of at least one instance where the Department hired a white applicant from outside the Department despite Commissioner Benepe’s prohibition on external hires.

Taken together, the overarching message conveyed by the Parks Department’s actions since the settlement is that the Department is mechanically endeavoring to comply with the terms of the settlement without demonstrating a genuine commitment to improve EEO practices within the Department.

The City Council should act to eliminate discrimination in other City agencies.

Two key areas where the City could take important steps to improve equal access to employment are civil service exams and better maintenance and availability of EEO data.

Last year, when the Director-Counsel of the Legal Defense Fund addressed these two Committees, he stressed the need for New York City to reevaluate its civil service hiring process, and stop using poorly-designed written exams that do little to predict success on the job. Since then, we have even more proof of the need to reevaluate the City’s civil service exams. As you are no doubt aware, this summer a federal judge in Brooklyn found that the New York City Fire Department’s employment tests discriminated against and excluded hundreds of African-American and Hispanic firefighter candidates from the FDNY. The result is that of the City’s firefighting force of 11,000, only 7% are African American and Hispanic – an embarrassingly low number for a city that is 50% African American and Hispanic. In another lawsuit that LDF is currently defending on appeal, the City relied on discriminatory civil service exams and recruitment practices in a manner that broadly excluded African Americans, Hispanics, and women from employment as Custodians and Custodian Engineers in the New York City public schools. For New York to make real progress in eradicating employment discrimination from City agencies, it must stop using outdated discriminatory exams that do not select the best people for the job. Moreover, the Supreme Court’s recent decision in Ricci v. DeStefano preserves, and indeed encourages, employers to be deliberate in creating any selection process and the Court recognized that “employers’ voluntary compliance efforts…are essential to [our civil rights laws].” Therefore, rather than wasting millions of dollars defending discriminatory practices as the City is doing in the firefighter lawsuit, the City should be investing money and resources in developing fair, non-discriminatory, and job-related selection tools for hiring and promotions.

Finally, we cannot impress upon the Council enough, how crucial accuracy and transparency in EEO data are to the effective enforcement of EEO laws. New York City’s agencies come up woefully short on both fronts. For example, in the Parks litigation we found that the Department was using in-house titles to circumvent the civil service system, undermining the purpose of the civil service system to select the best individuals for positions regardless of race, gender, ethnicity or other protected category. The Parks Department is not alone, many other City agencies use “in-house” or “office” titles to manipulate the civil service system and employ antiquated data collection, reporting, and filing systems that make it impossible to identify which agencies are doing well at developing a diverse workforce from top to bottom and which agencies are struggling to offer jobs and promotions on a non-discriminatory basis. The City must collect better data on who seeks and holds what jobs, for how long, at what salaries, and who advances and who seems to be hitting a glass ceiling; and we, civil rights advocates, need to be able to obtain that data.

Thank you for the opportunity to testify before you today. While aggressively implementing the provisions of the Wright v. Stern settlement is an important first step in addressing discrimination in the Parks Department, I hope the Council is willing to pursue the additional measures I have suggested to confront race discrimination not only in the Parks Department but across all City agencies. The City owes its workers, at the least, a fair and equal opportunity to perform and advance in their jobs without regard to their race.