On September 11, 2006, Federal District Court Judge Frederic Block upheld key job benefits received by minority and female custodians in the New York City public schools. Judge Block held that the job benefits, including permanent civil service appointments and retroactive seniority, were a permissible remedy for the Board of Education’s past racial discrimination and sex discrimination in the hiring of school custodians.

In rejecting the arguments of a group of white male custodians who had claimed to be unfairly harmed by the job benefits that the lawsuit secured for minority and female employees, Judge Block stated that “it is ludicrous to argue that when an employer takes action to rectify past discrimination it is acting contrary to its business needs.” The court held that incumbent custodians were not unfairly harmed by the Board’s steps to rectify its prior discrimination against minorities and women.

The NAACP Legal Defense and Educational Fund, Inc. (LDF), which represented a group of African-American and Hispanic custodians who were the victims of racially discriminatory hiring tests, called the decision a key victory against job discrimination.

“Judge Block’s opinion vindicates the employment rights of minority custodians and properly allows them to be placed in the position they would have occupied absent the Board?s discriminatory hiring practices,” said LDF Assistant Counsel Matthew Colangelo. “The opinion also establishes the critical constitutional principle that public employers may implement race-conscious affirmative action measures as a way to remedy prior discrimination.”

Judge Block’s decision involved the lawfulness of a 1999 settlement between the Board of Education and the United States Department of Justice, which sued the Board in 1996 for employment discrimination. Minorities and women were disproportionately excluded by the Board’s hiring process for permanent positions, with the result that most could only obtain provisional employment. Provisional employees may be fired at any time, and have no ability to obtain transfers or promotions.

The Board settled with the Justice Department in 1999, agreeing to give permanent positions with retroactive seniority to those affected by the discriminatory hiring practices. When a group of white custodians challenged the lawfulness of the settlement, the Justice Department proposed revisions that would have dramatically reduced the remedies it had previously negotiated for African-American, Hispanic, and female custodians. LDF intervened at the request of those African-American and Hispanic custodians whose remedies would have been eliminated by the Justice Department’s change in position.