“Woefully Thin Statistics” Doom Adverse Impact Claim

Constangy, Brooks, Smith & Prophete, LLP

Patrick White, an attorney in the Cook County (Illinois) Public Defender’s Office, lost his claim that the county’s promotion process had an adverse impact on male attorneys. This judicial finding follows a jury verdict against the lawyer on his claims of disparate treatment discrimination.

Mr. White was a Grade III public defender, seeking a promotion to Grade IV. He contends that the all-female promotion board and the interview process, which included a scoring system, had an adverse impact on male lawyers. The evidence showed the following:

  • Of the 38 applicants for Grade IV public defender positions, 47 percent were female and 53 percent were male.
  • Two of the male applicants were disqualified because they did not possess the minimum qualifications for promotion.
  • Of the 36 applicants that were interviewed, 20 were ultimately promoted to Grade IV public defender. Among the promoted individuals, 62 percent were female and 38 percent were male.
  • Mr. White ranked 33rd of the 36 applicants considered minimally qualified.

Although females and minorities were almost equally represented in the applicant pool, those promoted as a result of the interview process were predominantly female.

In assessing the disparate impact claim, the judge provided a thorough overview of the legal analysis for such causes of action. One requirement is that the plaintiff identify a specific employment practice that caused the adverse impact. Here, Mr. White pointed to the interview questions and the subjective nature of the scoring process. The judge found, however, that the statistical evidence was insufficient to demonstrate that the promotion process had an adverse impact on males, and one reason was the relatively small sample size:

“Courts have recognized that “the probative value of statistical evidence varies with sample size in disparate-impact cases.” . . .  Indeed, where “the sample size or alleged effect is so statistically insignificant that no inference of discriminatory impact is proper, plaintiff fails to present a prima facie case.”

Mr. White’s sample size was simply too small to support a disparate impact claim, and the judge noted that Mr. White failed to provide any expert testimony to interpret the results.

This decision supports what many federal contractors know – statistical significance is not the end of the inquiry. Often, it is just the beginning. Statistical significance does not necessarily mean that discrimination has occurred, and results can certainly be skewed by small sample sizes or the existence of only a small number of individuals from one group in the sample.

Analyses of employment practices that result in statistical significance should certainly not be ignored, but don’t assume that the reason for the result is discrimination — assess the underlying figures, evaluate the samples, investigate the potential causes of the impact, and, if necessary, consult an expert or statistician for guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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