~ 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: Plaintiff provides statistical evidence of underrepresentation of minorities/women in the workforce compared to a relevant labor pool or cross-job disparities within the workforce (e.g., overrepresentation of minorities/women in less desirable jobs) Phase 2: Defendant can use McDonnell–Burdine defense for pattern statistics; defense for individual claims generally follows McDonnell–Burdine rules (e.g., articulatea legitimate reason for disparities) Phase 3: Plaintiff’s requirement for showing pretext is the same as previously discussed for McDonnell–Burdine 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%) ___________________________________________________ All hired after suit was filed

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 imbalanceis 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.” >>> Government met its burden

5. Step 2: Articulation of legitimate business reasons >>> 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. From Title VII ---703 (j) Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor–management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalancewhich may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program,in comparison with the total number or percentage of personsof such race, color, religion, sex, or national originin any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

8. 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% Gov't % stats Defense % stats SC = correct comparison * 1972 is when Title VII was amended to cover public institutions >>> 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)

9. Wal-Mart v. Dukes (2011) • Plaintiffs alleged system-wide sex discrimination regarding pay and promotion decisions at Wal-Mart • Centralized structure fosters gender stereotyping • Plaintiff’s 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 aren’t.” • 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.”

10. Wal-Mart v. Dukes (2011) • Statistics: • Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only 33 percent of managementemployees • 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: Regressionanalysis indicated statistically significant disparities between men and women at Wal-Mart and that these can only be accounted for by gender discrimination

11. 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, • the claims or defenses of the representative parties are typicalof the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

12. Wal-Mart v. Dukes (2011) Supreme Court Decision: • Majority failed to certify plaintiffs as a class. Commonality was not satisfied – Rule 23(a)(2) • Need to suffer same injury(not just violation of same law); need common answers - ones that resolve issues in a single stroke (class wide resolution) • Significant proof of a general policy/practice of discrimination -- no common glue to hold together all allegations • No convincing proof of a companywide discriminatory pay and promotion policy, no existence of any common question Dissent: “Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here 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, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality requirement”

13. We have previously stated in this context that "[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected Typicality requirement asks a court to engage in … determining whether the claims of the representative parties arise from the same event or conduct and are based on the same legal theory as those of the class

14. 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