Basic factors for evidence of discrimination

1. Basic factors for evidence of discrimination • Impact on actual applicants (“Flow” statistics) • Impact on potential applicants • Representation regarding a company’s workforce (“Stock” • statistics) Most commonly used comparison in EEO cases • Basically, this is a comparison between 2 numbers (often percentages) • % reflective of the company’s work force • % indicative of the relevant population or labor force

2. Some Key Issues/Questions • What determines the number to be used indicating the labor market? • What geographical area is to be used? (e.g., a city, region, entire • nation) • Who is counted in the geographical area? (e.g., everyone in the population, only those with certain qualifications) Who is counted within the company? • Full-time workers only or do part-time employees get counted? • Employees in all job classes, a categorization of certain job • classes, or only one job class? • Employees in just one department, the entire facility, or • facilities across the nation?

3. Basic Process in Adverse Impact Cases • Plaintiff demonstration of prima facie case: • Unequal impact of the practice in question • The practice has unequal impact on the groups in question • The group(s) in question is (are) not represented adequately in the organization's workforce • 2.Defendant: • A legitimate nondiscriminatory reason exists for the rejection of the person (Business necessity; Job relatedness) • Plaintiff: • A less discriminatory alternative and reasonable practice exists that could be used by the company

4. Teamsters v. United States Summary 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 ____________________________________________________ Intercity drivers 1802 13 Local drivers 1117 167 _____________________________________________________ Also, the government introduced population statistics that showed further disparities. For instance, some company terminals in areas of substantial black population had no black intercity drivers.

5. Teamsters v. United States (key findings) Representation statistics as evidence of a prima facie case “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; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of long lasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though 703 (j) makes clear that Title VII imposes no requirement that a work force mirror the general population." Statistics regarding representation can establish a prima facie case and the appropriate labor market may sometimes be the total population

6. Teamsters (key findings cont.) Degree of disparity between workforce & population statistics "At best, these attacks go only to the accuracy of the comparison between the composition of the company's work force at various terminals and the general population of the surrounding communities. They detract little from the Government's further showing that Negroes and Spanish-surnamed Americans who were hired were overwhelmingly excluded from line-driver jobs. Such employees were willing to work, had access to the terminal, were healthy and of working age, and often were at least sufficiently qualified to hold city-driver jobs. Yet they became line drivers with far less frequency than whites. See, e. g., Pretrial Stipulation 14, summarized in 517 F.2d, at 312 n. 24. Of 2,919 whites who held driving jobs in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167 (93%) were city drivers. I n any event, fine tuning of the statistics could not have obscured the glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero." In cases where the differences are vast, technical issues regarding statistical analyses/comparisons may be irrelevant

7. Hazelwood v. United States (Summary) In 1973, the federal government sued a suburban school district for discriminating against black schoolteachers in its hiring practices. The government pointed out that although the U.S. census showed that 15.4 percent of the schoolteachers living in the metropolitan area were black, only 1.8% of the schoolteachers employed by the district were black. The school district replied that there were relatively few black schoolteachers in the district because there were few black pupils there. Besides, the metropolitan area included a center city with a relatively large black population and a school district that had made efforts to maintain a 50% black teaching staff. In light of that competition, the suburban district asserted that it was unreasonable to expect it to hire black teachers in proportion to their availability in the total metropolitan area. Excluding the center city, only 5.7% of the teachers living in the metropolitan area were black. The school district also stated that it was unfair to compare those population percentages with the percentages for teachers employed by the school district because many of the teachers employed by the district were hired before Title VII was made applicable to the school district (May 24, 1972). Since then, 3.7 percent of the teachers hired were black.

8. Summary of the statistics used in Hazelwood Total teachers hired by the district ......................... 1231 % of Black teachers hired by the district ............... 1.8% Total # of teachers hired since 3/24/72 ................. 405 % Blacks hired since 3/24/72 .............................. 3.7% % Black teachers living in metropolitan area ........ 15.4% % Black teachers in area living outside center city .. 5.7% % Black pupils enrolled in school district ............... 2.3%

9. Key Findings From Hazelwood School District v. U.S. Relevant Labor Market: In determining [433 U.S. 299, 312] which of the two figures ‑ or, very possibly, what intermediate figure ‑ provides the most accurate basis for comparison to the hiring figures at Hazelwood, it will be necessary to evaluate such considerations as (i) whether the racially based hiring policies of the St. Louis City School District were in effect as far back as 1970, the year in which the census figures were taken; (ii) to what extent those policies have changed the racial composition of that district's teaching staff from what it would otherwise have been; (iii) to what extent St. Louis' recruitment policies have diverted to the city, teachers who might otherwise have applied to Hazelwood; (iv) to what extent Negro teachers employed by the city would prefer employment in other districts such as Hazelwood; and (v) what the experience in other school districts in St. Louis County indicates about the validity of excluding the City School District from the relevant labor market. Conceptually, the labor market includes those people who are willing and able to perform a given job. In practice, data often come from census and/or Department of Labor statistics.

10. Key Findings From Hazelwood School District v. U.S. (cont.) Time Frame Issue: Racial discrimination by public employers was not made illegal under Title VII until March 24, 1972. A public employer who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all‑white work force by purposefully excluding Negroes.15 For this reason, [433 U.S. 299, 310] the Court cautioned in the Teamsters opinion that once a prima facie case has been established by statistical work‑force disparities, the employer must be given an opportunity to show that "the claimed discriminatory pattern is a product of pre‑Act hiring rather than unlawful post‑Act discrimination."

11. Furnco Quotes • “Title VII … does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees” • “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant’s race are already proportionately represented in the work force.” • “Proof that his work force was racially balanced or that it contained a disproportionately high percentage of minority employees in not wholly irrelevant on the issue of intent when that issue is yet to be decided.”