1. ~ Pattern or Practice Discrimination ~ Engaging in widespread, regular intentional discrimination (e.g. standard operation procedure)

2. Phase 3 : Plaintiff’s requirement for showing pretext is the same as previously discussed for McDonnell–Burdine cases for both the overall and individuals claims ~ The Pattern or Practice Scenario ~ Phase 1 : Plaintiff provides statistical evidence of underrepresentation of minorities/women in the workforce ( composition statistics) or overrepresentation of minorities/women in less desirable jobs ( cross-job disparities ) Phase 2: Defendant can use McDonnell–Burdine defense for pattern statistics; defense for individual claims generally follows McDonnell–Burdine rules (e.g., articulate a legitimate reason for disparities)

3. 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%) ___________________________________________________ Teamsters v. United States (1977) All hired after suit was filed

4. 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 Teamsters: Prima facie case (or existence of intentional discrimination) cannot be made on statistics alone “ … 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 Step 1: Statistics as evidence of a prima facie case

5. >>> Company offered 2 articulations: Court: “Good faith” assertions cannot offset a prima facie case 2)Government failed to used composition statistics (workforce numbers relative to those in the labor pool) Step 2: Articulation of legitimate business reasons Court : Although such number were favorable (e.g., 8.5% of all drivers were minority), the challenge was cross job disparities – such stats not relevant here Government showed that minorities were overwhelmingly not hired for better paying, line driver jobs 1) Hiring based on qualifications (not race)

6. Hazelwood v. United States (1977) Summary of the statistics used 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% (surrounding county; % the gov't thought was appropriate) % Black teachers in Hazelwood school district........ 5.7% (local area; % that Hazelwood thought was appropriate) % Black pupils enrolled in school district.............. 2.3% >>> 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; its AA plan raised hiring rates for minorities after 1972) * 1972 is when Title VII was amended to cover public institutions

7. 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: 1) “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.”

8. 2)Statistics: Women fill 70 percent of the hourly jobs in the retailer’s 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. Wal-Mart v. Dukes (2011) 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

9. 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: (1) the class is so numerous that joinder of all members is impracticable, (1) 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.

10. 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: “[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”

11. Wal-Mart v. Dukes (2011) General Implications: 1)Class certification claims for large monetary awards that fail to offer defendant opportunity to evaluate/address individual claims are “losers” (DOA) 2)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)