Zero is Not Just Another Number in Sex Discrimination Cases

In Walsh v. NYCHA, 14 Civ. 181 (2d Cir. July 7, 2016) (Hall J.), the Second Circuit reversed the District Court's grant of summary judgment and held that a reasonable jury could find that the New York City Housing Authority's decision not to hire the plaintiff, Rita Walsh, as a bricklayer was based on her sex.  The Second Circuit faulted the District Court for failing to view the following evidence as a whole.

The Housing Authority had interviewed six people -- Walsh and five men -- for five bricklayer positions.  A panel of four people conducted the interviews, which lasted between ten to thirty minutes.  While the panel made the hiring decision collectively, they deferred to the opinion of one member, James Lollo, who worked for NYCHA’s Technical Services Department.  A human resources representative for the Housing Authority, Osagie Akugbe, oversaw the  process and sat in on each interview. 

At the time of the hiring, no women were employed as bricklayers by the Housing Authority. Moreover, at least as far as the members of the panel knew, no woman had ever held that position.  The Second Circuit quoted with approval the reasoning of Judge Pauley in United States v. City of New York, 713 F. Supp. 2d 300 (S.D.N.Y. 2010), in which he wrote:

First, a court cannot help but be circumspect where a municipal department in the country’s largest city repeatedly selects only 13 applicants of one sex for job vacancies—after all, zero is not just another number. Second, even in cases where there is a weak inference of an inexorable zero or scant evidence of other women who applied and were 16 rejected, a court should consider that this lack of evidence may itself be attributable to the inexorable zero. 

City of New York, 713 F. Supp. 2d at 317-18 (internal citations and quotation marks omitted). 

Walsh was arguably more qualified than at least one of the men hired because tile work was one of the main tasks required of a bricklayer.  Indeed, it might be considered the primary task as two of the candidates had explained that, as bricklayers in Manhattan and Brooklyn, they spent between 50 and 90 percent of their time doing tile work.  Walsh had over a decade of experience in tile work.

During the interview, Lollo asked Walsh only one technical question (on the subject of making mortar mix).  She was not asked any technical questions related to brick and block (the area in which her inexperience supposedly prevented her from being hired) or to tile work (which, again, comprised a significant portion of the workload for a bricklayer).

Finally, after the interview, Akugbe (the HR representative) took Walsh aside and told her she did not get the job because the interviewers wanted someone “stronger.”  This could be viewed as a stereotyped remark demonstrating that gender played a part in the panel's decision not to hire Walsh, particularly because strength was not discussed during the interview.

This evidence, when viewed in its totality, could support a jury finding in Walsh's favor.

Second Circuit decision here:  http://cases.justia.com/federal/appellate-courts/ca2/14-181/14-181-2016-07-07.pdf?ts=1467901807