~ Pattern or Practice Discrimination ~

1
Pattern or Practice Discrimination
Engaging in widespread, regular intentional
discrimination (e.g. standard operation procedure)
2
The Pattern or Practice Scenario
Phase 1 "Stock" statistic disparities Plaintiff
provides statistical evidence of
underrepresentation of minorities/women in the
workforce compared to a relevant labor pool
(composition statistics) or cross-job disparities
within the workforce (e.g., overrepresentation of
minorities/women in less desirable jobs)
Phase 2 Defendant can use McDonnellBurdine
defense for pattern statistics defense for
individual claims generally follows
McDonnellBurdine rules (e.g., articulate a
legitimate reason for disparities)
Phase 3 Plaintiffs requirement for showing
pretext is the same as previously discussed for
McDonnellBurdine cases for both the overall and
individual claims
3
Teamsters v. United States (1977)
Overview The federal government sued a
nationwide trucking company and its union for
discrimination against black and Hispanic
Americans in hiring intercity truck drivers. The
government claimed that these minorities were
relegated to lower-paying driving jobs by the
existence of separate units (local unions) for
intercity and local drivers. Protection from
layoff and competition for vacancies were
determined by bargaining union seniority, so that
intercity runs were given to the applicant who
had been an intercity driver the longest. To
support its argument, the government presented
the following statistics on the company work
force
White Black Hispanic _____________
_____________________________________ Line
Drivers 1828
13 (Higher Pay)

(out of a
total of 571, 2.2) ____________________________
_______________________
4
Step 1 Statistics as evidence of a prima facie
case
Teamsters Prima facie case (or existence of
intentional discrimination) cannot be made on
statistics alone
Court Statistics showing racial or ethnic
imbalance are probative in a case such as this
one only because such imbalance is often a
telltale sign of purposeful discrimination
fine tuning of the statistics could not have
obscured the glaring absence of minority line
drivers ... the company's inability to rebut the
inference of discrimination came not from a
misuse of statistics but from "the inexorable
zero. gtgtgt Government met its burden
5
Step 2 Articulation of legitimate business
reasons
gtgtgt Company offered 2 articulations
1) Hiring based on qualifications (not race)
Court Good faith assertions cannot offset a
prima facie case

• Government failed to used composition statistics
• (workforce numbers relative to those in the
  labor pool)

Court Although such number were favorable
(e.g., 8.5 of all drivers were minority), the
challenge was cross job disparities such
composition stats not relevant here Government
showed that minorities were overwhelmingly not
hired for better paying, line driver jobs
6
Hazelwood v. United States (1977) Basic
charge Gov't sued based on an alleged
underrepresentation of minorities (black
teachers) in workforce versus availability of
teachers in the RLM
Two Basic Issues 1) How much of a statistical
difference is required to form a prima facie
case? 2) What is the relevant labor market
(pool) for composition disparities (
minorities in the workforce versus in RLM)?
7
Statistical Comparisons Debated in Hazelwood
of Black teachers hired by the district before
1972 .6 Blacks teachers at time of suit
(by 1974) ............... 3.7 Black
teachers in county (including St. Louis) .....
15.4 ( the gov't thought was
appropriate) Black teachers in Hazelwood school
district ............ 5.7 ( that
(defendant) Hazelwood thought was appropriate)
Black pupils enrolled in school district
.................. 2.3
1972 is when Title VII was amended to cover
public institutions
gtgtgt Supreme Court ruled that 3.7 vs. 5.7 was
the relevant comparison no prima facie case
made. Also, Hazelwood had articulated a
legitimate reason for the imbalance (e.g.,
competition from the City of St. Louis - hard to
compete) and its AA plan raised hiring rates for
minorities after 1972)
8
Wal-Mart v. Dukes (2011)

• Plaintiffs alleged system-wide sex
  discrimination regarding pay and promotion
  decisions at Wal-Mart
• Centralized structure fosters gender
  stereotyping

• Plaintiffs Evidence
• Social framework analysis --- Study on the
  culture at Wal-Mart
• (ripe for gender discrimination)
• Senior management often refer to female
  associates as little Janie Qs.
• One manager told an employee that men are here
  to make a career and women arent.
• A committee of female Wal-Mart executives
  concluded that stereotypes limit the
  opportunities offered to women.
• Wal-Mart permits those prejudices to infect
  personnel decisions, by leaving pay and
  promotions in the hands of a nearly all male
  managerial workforce using arbitrary and
  subjective criteria.

9
Wal-Mart v. Dukes (2011)

• Statistics
• Women fill 70 percent of the hourly jobs in the
  retailers stores but make up only 33 percent of
  management employees
• The higher the organizational level, the lower
  the percentage of
• women (different that it competitors)
• Women working in the company's stores are paid
  less than men in every region and that the
  salary gap widens over time even for men and
  women hired into the same jobs at the same time.

Conclusion Regression analysis indicated
statistically significant disparities between men
and women at Wal-Mart and that these can only be
accounted for by gender discrimination
10
Wal-Mart v. Dukes (2011)

• All 4 of the following must be met ---
• Rule 23. Class Actions (a) Prerequisites. One or
  more members of a class may sue or be sued as
  representative parties on behalf of all members
  only if
• the class is so numerous that joinder of all
  members is impracticable,
• there are questions of law or fact common to
  the class,
• (3) the claims or defenses of the representative
  parties are typical of the claims or defenses of
  the class and
• (4) the representative parties will fairly and
  adequately protect the interests of the class.

11
Wal-Mart v. Dukes (2011)
Supreme Court Decision

• Majority failed to certify plaintiffs as a
  class. Commonality was not satisfied Rule
  23(a)(2)

Dissent Rule 23(a)(2) establishes a
preliminary requirement for maintaining a class
action There are questions of law or fact
common to the class. The Rule does not require
that ALL questions of law or fact raised in the
litigation be common, indeed, even a single
question of law or fact common to the members of
the class will satisfy the commonality
requirement
12
Wal-Mart v. Dukes (2011)
General Implication
For suits of this nature, plaintiffs need to
present some identifiable employment practice or
policy that affects the class in the same or
similar manner (e.g., commonality requirement)