NYC Probation Officers’ Discrimination Case is Moving Ahead — Despite Mayor Eric Adams’ Objections
Members of the United Probation Officers Association [UPOA] are suing the City of New York to stop discriminating against them because they are largely women of color.
By Bob Hennelly
A class action lawsuit that alleges New York City engaged in discriminatory employment practices in how it compensates hundreds of its probation officers may proceed over the objections of the Adams administration, federal Southern District Judge Ronnie Abrams ruled on May 5.
Back in 2021, the United Probation Officers Association [UPOA], which represents several hundred probation officers, which are predominantly women of color, initiated the legal action on the basis that even though their members were required to be armed like police officers and to also make apprehensions, they are paid several thousands of dollars less annually than their mostly male counterparts in the NYPD.
“We are thankful to be able to move forward in our effort to correct these unfair pay practices on behalf of our members and look forward to the opportunity to do so” UPOA President Dalvanie Powell said.
Yetta Kurland, senior partner of The Kurland Group, the firm representing the union, declined to comment citing ongoing litigation.
“The Court’s decision to not dismiss claims at this early stage does not mean the allegations have merit,” Nick Paolucci, spokesman for the City’s Corporation Counsel, said in a statement. “The city is committed to fairness in employment and is prepared to litigate these unsupported claims.”
The UPOA has retained Dr. Brian J. Maguire, who is a nationally-recognized expert on the comparative occupational risks faced by emergency services personnel. Maguire’s 10-page report, a comparative analysis between the risks and duties of NYPD officers, Department of Correction officers and Probation officers, was part of the union’s filings with the court.
“NYC Probation Officers are New York State certified peace officers and perform law enforcement duties similar to that of NYC corrections officers and police officers. Their training is similar, and they face similar risks of violence-related occupational injuries,” according to Maguire’s report. “Department of Labor data show that from 2011 to 2020, nationwide 28 percent of all injuries to police officers, 30 percent of injuries to probation officers and 40 percent of injuries to corrections officers were violence related, compared to 7 percent for all U.S. workers,”
Maguire observed, “The three type of officers do have substantially similar duties related to interacting with individuals in their charge, maintaining peaceful environments through law enforcement, and completing necessary administrative duties. All three carry weapons as a way to maintain the peace and all three groups receive training and are expected to maintain proficiency using their weapons. All three must pass similar law enforcement training programs. The police academy is six months on average, corrections is four months on average, and probation is two months on average, but they cover the same law enforcement topics and curriculum.”
The expert report continued, “Similarly in NYC, probation and police officers work very closely on the scene of emergency calls where they both share similar responsibilities and similar risks. Both groups of officers must maintain the skills to use their weapon and to protect themselves and their partners during emergency incidents. On the scene of those hazardous events, both probation and police officers would be wearing bullet-proof vests, and both could be using their weapons to stop a perpetrator or to protect a life.”
The Probation Officers Association class action resembles another pending class action also brought under Title VII of the Civil Rights Act of 1964 by DC 37 Local 2507 and Local 3631, which represent the FDNY’s EMS workforce. In that case, the EMS unions are alleging that their members, who are also primarily women and people of color make significantly less than their FDNY firefighter peers that are predominately white males.
MARATHON NOT A SPRINT
Title VII litigation has produced results for Black firefighters and for administrative managers of color with CWA 1180, but have taken years to resolve.
In 2019, the Mayor Bill de Blasio administration settled a gender and racial pay-discrimination lawsuit covering Administrative Managers that was brought by CWA 1180 in 2013 against the prior Mayor Michael Bloomberg administration. The $15-million settlement covered 1,600 active and retired union members — 1180 members who were on the job from December 2013 through 2017. The settlement also built-in additional pay raises going forward.
As part of the successful pleadings, CWA Local 1180 documented that in 1978, when the Administrative Manager title was mostly held by white males, the job paid the equivalent of $92,000 a year, but in the years that followed, when an increasing number of women held the title, the salary dropped to $53,000.
The union’s breakthrough came in April 2015, when the U.S. Equal Employment Opportunity Commission found reasonable cause to believe that for decades the city had engaged in widespread discrimination against women and people of color who held the Administrative Manager title.
The finding covered every city agency as well as the ranks of the New York City Housing Authority. The EEOC found that there had been “structural and historic problems” in how the city treated the female and minority workers with the Administrative Manager title that resulted in their being paid “much less than their white male counterparts.”
Gloria Middleton, president of CWA 1180, welcomed the news about the UPOA’s case.
“CWA Local 1180 has worked in partnership with UPOA and President Dalvanie Powell as we had experienced the same situation within our own union,” Middleton told Work-Bites. “The pay inequities my members dealt with are the same ones UPOA members face. I am happy I’ve been able to support them in their endeavor to have the City make their members whole. Hopefully, this is a stepping stone for the City to do the right thing and pay UPOA members fairly as they did for our union members at 1180.”
A DECADE PLUS
In 2002, the Vulcan Society, the Black fraternal support group for FDNY employees, along with the Center for Constitutional Rights, brought a Title VII EEOC racial discrimination asserting that less than 3 percent of the FDNY’s firefighters were Black while 27 percent of the city was Black.
“The case focuses on the discriminatory impact of written exams used by the FDNY to screen applicants as well as the discriminatory hiring process following the tests,” according to a synopsis on the Center for Constitutional Rights website. “For decades, despite consistent complaints not only from the Vulcan Society but also from internal administrators, the city used a written exam that had never been validated to measure the skills necessary to be a good firefighter.”
In 2007, the Department of Justice under the Bush administration, filed a lawsuit that built on the Vulcan Society claims against the City of New York, alleging that the city was engaged in a pattern and practice of discrimination in the hiring of entry-level firefighters.
“Specifically, the United States alleged that the City’s use of Written Examinations 7029 and 2043, given between 1999 and 2006, to screen applicants for entry-level firefighter positions, and its decision to rank-order applicants who passed the written examinations for further consideration, had an unlawful disparate impact on Black and Hispanic applicants,” according to a DOJ fact sheet on the case.
When the Vulcans Society and the Center for Constitutional Rights initiated their action, New York City had the least diverse fire department of any big city in the country – only 7.4 percent Black and Latino. By contrast, “57 percent of Los Angeles’ firefighters, 51 percent of Philadelphia’s, and 40 percent of Boston’s were people of color. The fire departments were 30 percent Black in Baltimore and 23 percent Black in Chicago,” according to the Center for Constitutional Rights.
“After the case was settled in 2014, with a new, fairer exam and oversight of the firefighter appointment process, the FDNY appointed the most diverse class in its history, with 17 percent Black firefighters and 24 percent Latino firefighters,” the CCR reports. “With the other remedies from the case taking effect, New York City may finally have a fire department that looks like the city it serves.”
In the spring of 2014, after years of resistance from the Bloomberg administration, the de Blasio administration signed off on a settlement that awarded $98 million for Black and Latino victims of discrimination. It also created new recruitment goals for the FDNY, established the position of Chief Diversity Officer to ensure equal opportunity within the department, appointed a special master and put the implementation of the consent decree under the direct supervision of federal Judge Nicholas G. Garaufis, which continued to this day.