Pattern-Or-Practice Claims—Class
Actions
• “[R]acial discrimination was the company’s
standard operating procedure—the regular
rather than the unusual practice.” (Teamsters v.
U.S.)
• Prima facie case
▫ Statistics: compare employer’s demographics with
a relevant labor market
▫ Individual buttress cases
• Employer’s rebuttal burden
Discriminatory Treatment Claims—
Pattern-Or-Practice
• Hazelwood School District v. U.S. (U.S. 1977)
▫ Facts; issue
• Compare (1) racial composition of teaching staff
and (2) racial composition of qualified teachers
in relevant labor market
• Issue on remand: accurate basis for comparison
▫ Note applicant flow data
Discriminatory Treatment Claims—
Pattern-Or-Practice
• EEOC v. Chicago Miniature Lamp Works (7th
Cir. 1991)
• Word-of-mouth hiring
• Relevant labor market: qualified and interested
applicants
▫ Consider pay and distance from workplace
• Qualified individuals discouraged from applying
Disparate Impact Claims
• Title VII Sec. 703(a)(2): “It shall be an unlawful
employment practice . . . to limit, segregate, or
classify his employees or applicants for
employment in any way which would deprive or
tend to deprive any individual of employment
opportunities or otherwise adversely affect his
status as an employee, because of such
individual’s race, color, religion, sex, or national
origin.”
Disparate Impact Claims
• Griggs v. Duke Power Co. (U.S. 1971)
▫ Facts; issue
• Title VII and the objective of Congress
• “The Act proscribes not only overt
discrimination but also practices that are fair in
form, but discriminatory in operation. The
touchstone is business necessity.”
Griggs (cont.)
• “Congress directed the thrust of the Act to the
consequences of employment practices, not
simply the motivation” and has “placed on the
employer the burden of showing that any given
requirement must have a manifest relationship
to the employment in question.”
• The Court’s construction of Title VII Sec. 703(h)
Disparate Impact Claims
• Albemarle Paper Co. v. Moody (U.S. 1975)
▫ Facts; issue
• Methodology: (1) prima facie case; (2) employer
proof of job relatedness; (3) plaintiff’s pretext
(alternative selection device) showing
• The employer’s validation study: compare (1)
employee’s test score with (2) supervisory
ranking of employee
Albemarle (cont.)
• EEOC’s Guidelines and job-related testing
• The defective study
▫ (1) Significant correlations in only 3 of 8 lines of
progression; (2) vague supervisory ranking
standard; (3) focused on jobs near top of line of
progression; (4) studied experienced white
workers; tests given to new, inexperienced, young
nonwhite job applicants
• Remanded