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 companys workforce
  (Stock
• statistics) Most commonly used comparison in
  EEO cases

• Basically, this is a comparison between 2 numbers
  (often percentages)
• reflective of the companys 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

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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
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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
  applicants 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.