Eugene Margerum, et al., Appellants-Respondents,v.City of Buffalo, et al., Respondents-Appellants.BriefN.Y.January 6, 2015COURT OF APPEALS, STATE OF NEW YORK ----------------------------------------------------------- EUGENE MARGERUM, ANTHONY HYNES JOSEPH FAHEY, TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI, SCOTT SKINNER, THOMAS REDDINGTON, TIMOTHY CASSEL, MATTHEW S. OSINSKI, MARK ABAD, BRAD ARNONE AND DAVID, DENZ, Appellants-Respondents, v. CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF FIRE, AND LEONARD MATARESE, INDIVIDUALLY AND AS COMMISSIONER OF HUMAN RESOURCES FOR CITY OF BUFFALO, Respondents-Appellants ------------------------------------------------------------------ PROPOSED AMICUS BRIEF OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE IN SUPPORT OF THE RESPONDENTS-APPELLANT’S APPEAL National Association for the Advancement of Colored People Attorneys for amicus curiae Anson C. Asaka, Esq., counsel of record Marshall W. Taylor, Esq. Khyla D. Craine, Esq. National Association for the Advancement of Colored People 4805 Mount Hope Drive Baltimore, MD 21215 Tel: (410) 580-5767 APL-2013-0029 Erie County Index No. 2007/1462 ii Fax: (410) 398-9350 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTEREST OF AMICUS CURIAE ............................................................................ 1 SUMMARY OF THE ARGUMENT ........................................................................ 1 ARGUMENT ............................................................................................................. 4 I.THE CITY OF BUFFALO’S HISTORY OF PAST DISCRIMINATION WARRANTS THEIR RACE-CONSCIOUS ACTION AND ENSURES EQUAL OPPORTUNITY FOR ALL IN THE CITY’S HIRING AND PROMOTIONAL PRACTICES...................................................................... 4 a.The City of Buffalo’s reoccurrence as a defendant in Civil Rights Suits and the Court’s Remedial Order illustrate a clear history of discrimination against minorities. ......................................................... 4 b.The City of Buffalo’s actions satisfy the Ricci standard. ................... 7 II.PREVENTING EMPLOYERS FROM QUICKLY AND EFFICIENTLY REMEDYING DISCRIMINATORY PRACTICES WILL FRUSTRATE CONGRESS’ PURPOSE FOR ENACTING TITLE VII. ............................10 III.POSITIVE REINFORCEMENT OF EMPLOYER ACTION TO PREVENT DISCRIMINATION IN THE CIVIL SECTOR PROMOTES RACE-BASED EQUALITY, SOCIO-ECONOMIC MOBILITY AND INSPIRES FUTURE GENERATIONS TO STRIVE AND ACHIEVE SUCCESS. .....................................................................................................12 a.If this court rules in favor of the Buffalo City Fire Department, this will encourage other employers to affect equality in the workplace. .12 b.Increasing the accessibility and promotional potential of civil servant positions for minorities will help enhance the social mobility of minorities. .......................................................................................14 CONCLUSION ........................................................................................................18 iii TABLE OF AUTHORITIES Cases Barnhart v. Safeway Stores, Inc., 25 Fed. R. Serv. 3d 35 (E.D. Cal. 1992) ............13 Butler v. Home Depot, Inc., No. C-94-4335 SI, 1996 WL 421436 (N.D. Cal. Jan. 25, 1996) ...............................................................................................................13 Ernst v. City of Chicago, No. 08 C 4370, 2014 WL 1759550 (N.D. Ill. May 5, 2014) .....................................................................................................................14 Godfrey v. City of Chicago, 973 F. Supp. 2d 883 (N.D. Ill. 2013) ..........................14 Kraszewski v. State Farm Gen. Ins. Co., 33 Fed. R. Serv. 2d 332 (N.D. Cal. 1981) ...............................................................................................................................13 M.O.C.H.A. v. City of Buffalo, 98-cv-99C, 2007 WL 4555904 (W.D.N.Y., Dec. 19, 2007) ...................................................................................................................2, 6 Ricci v. DeStefano 557 U.S. 557 (2009) ......................................................... 1, 9, 11 United States v. City of Buffalo, 457 F. Supp 612 (W.D.N.Y 1978), aff’d 633 F.2d 643 (2d Cir. 1980) ...............................................................................................2, 4 United States v. City of Buffalo, 633 F.2d 643 (2d Cir. 1980) .................................. 5 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) ...................... passim Other Authorities Dr. Kevin Murphy Affidavit ...................................................................................... 7 Dr. Nancy Abrams Affidavit ..................................................................................2, 7 Joseph G. Altonji & Rebecca M. Blank, Handbook of Labor Economics 3176 (O. Ashenfelter & D. Card eds., 3rd vol., 1999) .........................................................15 Mark Thomas, The Importance of Role Models, Health Guidance (2014) .............18 iv Micheal Greenhouse & Adam Looney, Thirteen Economic Facts about Social Mobility and the Role of Education, Hamilton Project (2013) .............................17 National Association of School Psychologist, Racism, Prejudice, and Discrimination Position Statement (2012) ............................................................. 4 New York City Fire Department, Benefits and Salary, NewYorkCity.Gov (last visited Jul. 15, 2014) .............................................................................................16 Richard V. Reeves, The Other American Dream: Social Mobility, Race and Opportunity, Brooking (August 28, 2013) .......................................................4, 14 Salaries by City: Find the Data, FindTheBest.org (last visited Jul. 15, 2014) ...3, 16 Thomas J. Billitteri, Middle-Class Squeeze: Is More Government Aid Needed, Sage Pub. 6 (March 6. 2009) ......................................................................................3, 16 Todd Gardner, Urban Institute, The Racial and Ethnic Composition of Local Government Employees in Large Metro Areas, 1960-2010 (2010) .................3, 11 Treatises Raymond Boudon, Education, Opportunity, and Social Inequality: Changing Prospects in Western Society (1974) ....................................................................14 1 INTEREST OF AMICUS CURIAE The amici submits this brief, in support of the Respondents-Appellants argument that allowing the promotion lists to expire did not violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. The Appellant’s evidence sufficiently meets the Ricci standard because there is a strong basis in evidence for the Appellant to believe that they would be subject to disparate impact liability if they failed to take the race-conscious discriminatory action. 1 The National Association for the Advancement of Colored People (“NAACP”), established in 1909, is the nation’s oldest civil rights organization. The fundamental mission of the NAACP is the advancement and improvement of the political, educational, social, and economic status of minority groups; the elimination of prejudice; the publicizing of adverse effects of discrimination; and the initiation of lawful action to eliminate age, racial, religious, and ethnic bias. SUMMARY OF THE ARGUMENT The City of Buffalo acted appropriately in voluntarily permitting the existing Fire Department’s promotional eligibility list to expire automatically. In Ricci v. DeStefano, 557 U.S. 557 (2009), the Supreme Court held that an employer may 1 Counsel for the amici authored this brief in whole. No person or entity other than amici, their staff, or their counsel made any monetary contribution to or financial support to the preparation or submission of this brief. 2 engage in intentional discrimination to avoid or remedy an unintentional disparate impact if the employer has a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious discriminatory action. Id. The city of Buffalo readily satisfies any reasonable construction of the standard set forth in Ricci because the city had a strong basis in evidence to believe that failure to act would expose it to disparate impact liability. Such evidence includes Buffalo’s history of past discrimination in hiring and promotional practices, the city’s reoccurrence as a defendant in racial discrimination cases, a federal court’s issuance of a Remedial Order against the City, and the disposition testimony of the exam’s developer. See United States v. City of Buffalo, 457 F. Supp 612 (W.D.N.Y 1978), aff’d 633 F.2d 643 (2d Cir. 1980); M.O.C.H.A. v. City of Buffalo, 98-cv-99C, 2007 WL 4555904 (W.D.N.Y., Dec. 19, 2007); Abrams Affidavit. Since the passage of Title VII of the Civil Rights Act of 1964, which prohibiting employers from discriminating against employees based on a variety of factors including race, minorities have achieved previously unobtainable access to the American workforce. 42 U.S.C. §§ 2000(e)-2(a)(1) to (c)(3)(2000). However, studies show that minorities have been disproportionately overrepresented within the low earning job categories, while white civil servants have been consistently overrepresented in high wage positions. See Todd Gardner, Urban Institute, The Racial and Ethnic Composition of Local Government Employees in Large Metro 3 Areas, 1960-2010 (2010). 2 Furthermore, African American representation in high earning civil servant positions has been on a steady decline. Id. An interpretation of the law that will make it procedurally more difficult to rectify the past discriminatory practices in civil servant employment will have a profound negative impact on minorities by serving to further perpetuate the existing employment disparities that exist between white and minority civil service employees. Conversely, positive reinforcement of state and local government’s efforts to prevent and remedy discriminatory practices will promote race-based equality, social mobility, and inspire minority youth to succeed. Upholding the city of Buffalo’s decision to remedy its past discriminatory practices will encourage other employers to eradicate discrimination without the fear of penalization. Additionally, increasing the accessibility and promotional potential of civil servant positions for minorities will help enhance the social mobility of minorities because of the higher earning potential and benefits associated with more senior level civil service positions. See Thomas J. Billitteri, Middle-Class Squeeze: Is More Government Aid Needed, Sage Pub. 6 (March 6. 2009); 3 see also Salaries by City: Find the Data, FindTheBest.org (last visited Jul. 15, 2014); see also Richard V. Reeves, The Other American Dream: Social Mobility, Race and Opportunity, 2 Available at www.metrotrends.org/commentary.race-and-local-government.cfm. 3 Available at http://www.sagepub.com/upm-data/31940_1.pdf. 4 Brooking (August 28, 2013). 4 Finally, allowing minorities to fairly infiltrate civil service occupations, will help facilitate a more equal and prosperous society. Minorities in high-paying civil servant positions will be role models for minority youth, which in turn will help inspire and motivate minority youth to succeed. See National Association of School Psychologist, Racism, Prejudice, and Discrimination Position Statement (2012). 5 ARGUMENT I. THE CITY OF BUFFALO’S HISTORY OF PAST DISCRIMINATION WARRANTS THEIR RACE-CONSCIOUS ACTION AND ENSURES EQUAL OPPORTUNITY FOR ALL IN THE CITY’S HIRING AND PROMOTIONAL PRACTICES. a. The City of Buffalo’s reoccurrence as a defendant in Civil Rights Suits and the Court’s Remedial Order illustrate a clear history of discrimination against minorities. In 1974, the United States sued Buffalo in the United States District Court, alleging that Buffalo used discriminatory written examinations to select entry-level firefighters. See United States v. City of Buffalo, 457 F. Supp 612 (W.D.N.Y 1978), aff’d 633 F.2d 643 (2d Cir. 1980). The District Court held that Buffalo had a pattern and practice of discriminatory hiring practices against African Americans, Hispanics, and women in its fire department. Id. at 640 (“The court has found a pattern and practice of discrimination against blacks, women and SSAs [Spanish- 4 Available at http://www.brookings.edu. 5 Available at http://www.nasponline.org/about_nasp/positionpapers/RacismPrejudice.pdf. 5 surname Americans] on the part of the City of Buffalo through its…Fire Departments. This includes specific court findings of discrimination in hiring requirements ...”). On November 23, 1979, the District Court issued a Final Decree and Remedial Order designed to remedy the effects of past discrimination within the Buffalo City Fire Department. See Ex. A (Remedial Order). The Remedial Order required Buffalo to set quotas for the hiring of new firefighters and enjoined Buffalo: from . . . engaging in any act or practices with respect to hiring, assignment, promotion, transfer, training or compensation which has the purpose or effect of discriminating against any employee or future employee with . . . the Buffalo . . . Fire Department because of such individual’s race, sex or national origin, nor will they engaged in any other acts or practice which deny to [Blacks, Hispanics] or women equal employment opportunities. See Ex. A at 1 (Remedial Order). Although, the United States Court of Appeals for the Second Circuit affirmed the District Court’s finding of discriminatory patterns or practices, the court slightly modified the Remedial Order by striking paragraph 2, which provided in pertinent part that each identifiable group of employees should exactly reflect the racial or sexual composition of the workforce. United States v. City of Buffalo, 633 F.2d 643, 649 (2d Cir. 1980) (“Without prejudice to what, if anything, may then be decided with respect to the need for an ultimate goal, we think the decree should be 6 modified by striking paragraph [sic] 2 and, as so modified, is affirmed.”). Even though it has been modified, the Remedial Order still remains in effect today. In the following years, Buffalo struggled to remain in compliance with the Remedial Order. In 1998 and again in 2003, Men of Color Helping All (“M.O.C.H.A.”), a non-profit organization composed of African American, sued Buffalo in the United States District Court for the Western District of New York seeking enforcement of the Remedial Order. In its first case, “MOCHA I”, the organization alleged that the examination used by the Buffalo Fire Department to determine eligibility for promotion to the rank of fire lieutenant impermissibly discriminated against African American firefighters. M.O.C.H.A. v. City of Buffalo, 98-cv-99C, 2007 WL 4555904 (W.D.N.Y., Dec. 19, 2007). Its second punitive class action, “MOCHA II”, alleged that the subsequent 2002 administration of the Lieutenants’ exam similarly discriminated against African American firefighters. To craft a defense in both MOCHA I and II, Buffalo’s legal counsel, hired an expert Personnel Psychologist to review the alleged discriminatory examinations. In her affidavit, Dr. Nancy Abrams informed the City that “there was a substantial risk that the MOCHA plaintiffs would prevail against the City because the scientific evidence supporting the validity of [the examination] was limited…[she] further indicated that it might not be in the City’s best interest to 7 call..[her] to testify in the MOCHA actions.” See Abrams Affidavit at 6-7. Dr. Abrams found that the Captain, Battalion Chief, and Division Chief examinations 6 were produced at the same time and in the same manner as the Lieutenant’s examination and thus could be reasonably expected to have the same discriminatory impact. Id. MOCHA plaintiffs’ expert, Dr. Kevin Murphy, an acknowledged scholar in the field of personnel psychology, also reached similar conclusions regarding the discriminatory impact of the Lieutenant’s exam. See Murphy Affidavit at 8. Dr. Abrams advised the City of Buffalo that Dr. Murphy’s findings were concurrent with hers and were detrimental to Buffalo’s defense. See Abrams Affidavit at 5. b. The City of Buffalo’s actions satisfy the Ricci standard. Title VII of the Civil Right Act prohibits facially neutrally practices that are discriminatory in operation. 42 U.S.C. § 2000e. A procedure is discriminatory in operation if the plaintiff can show that the practice has a disparate impact based on race. Ricci, 577 U.S. at 578. However, if the employer can show that the practice is consistent with a non-discriminatory, legitimate business necessity, the procedure or practice is not prohibited unless the plaintiff can show that there is an 6 The promotion examinations Buffalo employed were created by NYS Civil Service in the mid to late 1990s based on a “job analysis” research project (a validity analysis) done by Dr. Wendy Steinberg, Ph.D. Since NYS Civil Service had never repeated Dr. Steinberg’s job analysis, Dr. Abrams advised Buffalo that her conclusions applied to the 1998, the 2002 and the other promotional examinations. 8 available alternative practice that has a less disparate impact and serves the employer’s legitimate needs. Id. This issue was addressed by the United States Supreme Court in Ricci v. DeStefano. Id. In Ricci, when the results for the New Haven firefighter examination showed that white candidates had outperformed minority candidates, the City discarded the test results. Certain white and Hispanic firefighters who likely would have been promoted based on their good performance sued the city alleging that the City’s actions violated Title VII. Id. at 562. The city argued that if they had not discarded the results they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. Id. at 563. In upholding the City’s actions, the Supreme Court held that an employer may engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact if the employer has a strong basis in evidence to believe it will be subject to liability if it fails to take the race-conscious discriminatory action. Id. at 583. The Court fashioned this standard to “leave ample room for employers’ voluntary compliance efforts which are essential to the statutory scheme [under Title VII of the Civil Rights Acts of 1964, as amended] and to Congress’ efforts to eradicate workplace discrimination.” Id. The case at bar, is the second case, nationally, to apply the “strong basis in evidence” standard, purported in Ricci. In holding that the city of Buffalo 9 discriminated against white firefighters by discontinuing the use of promotional exam series, the Appellate Division of New York ignored the very substantial evidence relied upon by the City that readily satisfies any reasonable construction of the Ricci standard. The City’s strong basis in evidence that it faced disparate impact liability included: (1) the Remedial Order of 1979 requiring the City to take affirmative steps to prevent further disparate-impact discrimination for occurring in hiring and promotional practices; (2) Buffalo’ s anticipated litigation with African American firefighters challenging the exams in MOCHA I and MOCHA II ; (3) a qualified outside expert (Dr. Abrams), who systemically reviewed all the relevant evidence, including the deposition testimony of the exam’s developer and who ultimately advised the City of her numerous concerns with the exams ability to judge actual job performance; and (4) the testimony of the MOCHA plaintiffs’ expert (Dr. Murphy), who concluded that there was “no credible evidence” to support the use of the exams. The Appellate Divisions decision also misapplies Ricci by treating it as a blanket prohibition against voluntary efforts to avoid disparate-impact liability regardless of the circumstances. The Ricci majority recognized: forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provisions would bring compliance efforts to a near stand still . . . because employers would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.” Ricci, 557 U.S. at 581. 10 This case puts forth the exact issue the Ricci majority sought to prevent. The city of Buffalo had a strong basis in evidence because the City knew it would be liable for disparate-impact discrimination if it continued to use an objectively discriminatory tests and promotion lists. Moreover, the City knew that: (1) they were subject to liability in the past that led to a remedial order for using similar practices; (2) they were already facing liability in pending litigation with the African American firefighters in MOCHA I and MOCHA II; and (3) two experts concluded that their testing practices were at the very least incompetent in measuring job performance. II. PREVENTING EMPLOYERS FROM QUICKLY AND EFFICIENTLY REMEDYING DISCRIMINATORY PRACTICES WILL FRUSTRATE CONGRESS’ PURPOSE FOR ENACTING TITLE VII. Title VII of The Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, national origin, sex, or religion. 42 U.S.C. §§ 2000e-2(a)(1) to (c)(3) (2000). As enacted in 1964, Title VII did not include an expressed prohibition on discriminatory policies or practices that produce a disparate impact. However, Congress’ effort to protect certain groups of the American population from discrimination was furthered in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Court interpreted the Act to prohibit employer’s facially neutral practices that are discriminatory in operation. Id. at 11 431 (“The Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation”). This expansion was later codified in the Act. 42 U.S.C. § 2000e–2(k)(1)(A)(i). Congress enacted Title VII to create a workplace free of discrimination, where race is not a barrier to opportunity. 42 U.S.C. § 2000e; see also Ricci, 557 U.S. at 580. Since its creation, Title VII has allowed minorities unprecedented, though imperfect, access to the American public workforce. Although studies have shown a staggering increase in African-American employment in local governments, this increase in employment was mostly within the low earning job categories such as janitorial and secretarial staff positions. Todd Gardner, Urban Institute, The Racial and Ethnic Composition of Local Government Employees in Large Metro Areas, 1960-2010 (2010). 7 The same study showed that White civil servant employees have been consistently overrepresented in high earning positions, while African American representation in civil servant positions has been on a steady decline. Id. This overrepresentation of African Americans in low paying civil servant positions is not the race neutral and free opportunity workforce that Congress envisioned when it enacted Title VII. Ricci, 557 U.S. at 580. In order to create an equal opportunity workforce, laws must be interpreted to encourage 7 Available at www.metrotrends.org/commentary.race-and-local-government.cfm. 12 nondiscrimination. An interpretation of the law that discourages employers from rectifying past discrimination and makes it procedurally difficult to rectify discriminatory practices in civil service employment will have a profound negative impact on minorities. Upholding the lower court’s decision and its interpretation of the law will discourage employers from remedying past discriminatory practices and continue the phenomenon of African-Americans’ overrepresentation in low earning civil servant positions. Conversely, overruling the lower court’s decision and supporting the City’s decision to remedy its practices will increase the social mobility of minorities and inspire minority youth to excel. III. POSITIVE REINFORCEMENT OF EMPLOYER ACTION TO PREVENT DISCRIMINATION IN THE CIVIL SECTOR PROMOTES RACE-BASED EQUALITY, SOCIO-ECONOMIC MOBILITY AND INSPIRES FUTURE GENERATIONS TO STRIVE AND ACHIEVE SUCCESS. a. If this court rules in favor of the Buffalo City Fire Department, this will encourage other employers to affect equality in the workplace. Upholding the Buffalo City Fire Department’s decision to allow the promotion list to expire will not only impact Buffalo and the state of New York, but will also have the potential to positively influence other private employers. Courts are replete with cases involving workplace discrimination claims against private employers, including large corporations whose employment practices 13 impact a significant number of employees throughout the United States. See Butler v. Home Depot, Inc., No. C-94-4335 SI, 1996 WL 421436 (N.D. Cal. Jan. 25, 1996) (settlement of 87.5 million plus comprehensive injunctive relief, gender discrimination case in 1998); see also Barnhart v. Safeway Stores, Inc., 25 Fed. R. Serv. 3d 35 (E.D. Cal. 1992) (challenged job segregation and lack of promotional opportunities for women and minorities, resulted in settlement of $7.5 million and injunctive relief); see also Kraszewski v. State Farm Gen. Ins. Co., 33 Fed. R. Serv. 2d 332 (N.D. Cal. 1981) (gender discrimination case where women were rejected or deterred from applying for positions as State Farm agents, victims received monetary relief of $250 million). Upholding the Fire Department’s decision to remedy its discriminatory practices can encourage other companies to do the same and thereby positively affect change not only for racial minorities in the workforce, but for other groups (such as women) who also commonly suffer from workplace discrimination. It starts to reason that the decision of this court could have an impact on other fire departments, such as the Chicago Fire Department as well. Because the Chicago Fire Department has consistently been sued for its discriminatory practices, a ruling by this court upholding the city of Buffalo’s efforts to remedy past discriminatory practices within its fire department could provide a basis upon which Chicago could seek to achieve similar remedies. See Godfrey v. City of 14 Chicago, 973 F. Supp. 2d 883 (N.D. Ill. 2013); see also Ernst v. City of Chicago, No. 08 C 4370, 2014 WL 1759550 (N.D. Ill. May 5, 2014). However, if the Buffalo City Fire Department’s is penalized for its proactive decision to end discriminatory practices, cities like Chicago and other private employers will be discouraged from remedying past discriminatory practices to ensure equal employment opportunities for fear of liability. b. Increasing the accessibility and promotional potential of civil servant positions for minorities will help enhance the social mobility of minorities. The most pernicious racial divide today is in social mobility. Richard V. Reeves, The Other American Dream: Social Mobility, Race and Opportunity, Brooking (August 28, 2013). 8 Social mobility means the difference in social achievement according to social background. Raymond Boudon, Education, Opportunity, and Social Inequality: Changing Prospects in Western Society (1974). In today’s society there is an inequality of opportunity between a child born white and a child born black. Richard V. Reeves, The Other American Dream: Social Mobility, Race and Opportunity, Brooking (August 28, 2013). 9 In addition to opportunity gaps in education and wealth, racial opportunity gaps in 8 Available at http://www.brookings.edu. 9 Available at http://www.brookings.edu. 15 employment reflect the disproportionate representation of black families at the bottom of the income scale. Id. Statistics show that black rates of upward social mobility are far lower than whites. Id. “Black children are more likely to be born into poverty than white children; but they are also less likely to escape.” Id. While this racial social mobility gap can be attributed to a variety of factors, one apparent contribution is continued discrimination in the labor market. Id. Based on current literature in both sociology and economics, over the years, occupational segregation between whites and blacks has emerged. Joseph G. Altonji & Rebecca M. Blank, Handbook of Labor Economics 3176 (O. Ashenfelter & D. Card eds., 3rd vol., 1999). While it is true that occupational segregation can arise for many reasons, one strong possibility is severe employer discrimination. Id. A second possibility is that, due to institutional constraints that limit access to some occupations, members of different minority groups select different occupations. Id. If efforts to remedy discriminatory policies in the promotional process for civil servant occupations are struck down, the phenomenon of occupational segregation is bound to arise. Increasing the accessibility and promotional potential of civil servant positions for minorities will help enhance the social mobility of minorities. Civil servant jobs such as firefighters and police officers provide the salary and benefits 16 necessary for a stable and lucrative life. In Buffalo, an entry level firefighter can expect an average salary of $42,060; while a more senior level person can expect a salary of $73,050. Salaries by City: Find the Data, FindTheBest.org (last visited Jul. 15, 2014). 10 The minimum income needed for a three person household to be considered in the middle class is between $45,000 and $89,000. Thomas J. Billitteri, Middle-Class Squeeze: Is More Government Aid Needed, Sage Pub. 6 (March 6. 2009). 11 If one of the individuals in the family is a firefighter, their salary is potentially enough to move a lower class family into the middle class salary bracket. Additionally, most firefighters are provided with such benefits as life time medical coverage for themselves and their family, growth opportunities, flexible work schedules, up to four weeks paid vacation per year, and generous pension. New York City Fire Department, Benefits and Salary, NewYorkCity.Gov (last visited Jul. 15, 2014). 12 These benefits could help increase stability and economic prosperity in minority communities. If minorities are cut off from gaining employment in civil servant occupations such as firefighters or from being promoted within the ranks, due to discriminatory tactics, then this will hinder minority social mobility, creating a great strain on families and communities. 10 Available at http://salaries-by-city.findthebest.org. 11 Available at http://www.sagepub.com/upm-data/31940_1.pdf. 12 Available at http://www.nyc.gov/html/fdny/html/community/ff_salary_benefits_080106.shtml 17 Furthermore, if minorities are given the same opportunities to advance and gain civil service positions then this will increase the future earning potential for minority children. Studies show that a child’s family income plays a dominant role in determining his or her future income, those who start out poor are likely to remain poor. Micheal Greenhouse & Adam Looney, Thirteen Economic Facts about Social Mobility and the Role of Education, Hamilton Project (2013). 13 This means that children of well-off families are disproportionately likely to stay well- off and children of poor families are very likely to remain poor. Id. If discriminatory practices are not removed from employment opportunities, the social mobility of minorities, specifically blacks, in America, will continue to be stagnant. See Id. However, remedying employment discrimination will positively affect future generations. If minority children are exposed to minority adults in civil service occupations such as police officers, firefighters, and correctional officers, then they will be inspired and motivated to excel as well. Minorities in civil service occupations have the ability to serve as role models for children and youth in our society. From a general standpoint, role models are important because they help guide children during their development to make important decisions that affect the 13 Available at http://www.hamiltonproject.org/papers/thirteen_economic_facts_social_mobility_education/. 18 outcome of their life. Mark Thomas, The Importance of Role Models, Health Guidance (2014). 14 Children look to their role models for inspiration and use this as a blueprint for how they themselves will behave when they are older. Id. Accordingly, in addition to protecting current worker rights, preventing discrimination and allowing minorities to fairly infiltrate civil servant occupations can also help future generations become more successful by exposing them to positive role models within their communities. Id. CONCLUSION For the foregoing reasons, the NAACP submits this amicus curiae brief in support of the City of Buffalo’s application to the New York Court of Appeals for leave to appeal. Respectfully Submitted, Dated: 5 January 2015 Anson C. Asaka, Esq., Marshall W. Taylor, Esq. Khyla D. Craine, Esq. National Association for the Advancement of Colored People 4805 Mount Hope Drive Baltimore, MD 21215 Tel: (410) 580-5767 14 Available at https://www.google.com/search?q=abbreviation+for+health. 19 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served upon the parties listed below via certified mail on this 5 th day of January, 2015. Chiacchia & Fleming, LLP Attn: Andrew P. Fleming, Esq. Christian Archer Pierrot, Esq. 5113 South Park Avenue Hamburg, NY 14075 Attorney for Appellants Hodgson Russ, LLP ATTN: Joshua Feinstein, Esq Adam W. Perry, Esq 140 Pearl Street, Suite 100 Buffalo, NY 14202-4004 Attorney for Respondents . Dated: 5 January 2015 Anson C. Asaka, Esq., Marshall W. Taylor, Esq. Khyla D. Craine, Esq. National Association for the Advancement of Colored People 4805 Mount Hope Drive Baltimore, MD 21215 Tel: (410) 580-5767