Court rejects "pattern or practice" case against Section 1983 defendants

The Court of Appeals holds that the "pattern or practice" theory of employment discrimination is not appropriate in lawsuits against individual government officials. These kinds of cases are only appropriate against government entities.

The case is Reynolds v. Barrett, decided on July 11. The plaintiffs are inmates who claim they were given racially discriminatory assignments while employed at Elmira Correctional Facility. I bet you didn't know inmates could bring employment discrimination suits against the prisons that employed them. They can. These plaintiffs sought a class action on behalf of all non-Caucasian inmates who worked in the print shop, as well as those who were deterred from working in the print shop for racial reasons.

Apart from the fact that the plaintiffs are inmates, what makes this case unique is that they did not sue under Title VII but Section 1983 and related statutes, claiming that the individual defendants violated the Equal Protection Clause. Also unique is the theory of liability: "pattern or practice" as opposed to disparate treatment liability. They also sue under disparate impact liability.

Disparate impact liability is proven where the plaintiff shows that a facially neutral employment policy has a racially disparate impact for reasons that that bear no relationship to the job. The Court of Appeals (Wesley, McLaughlin and Cabranes) holds that disparate impact cannot violate Section 1983 and the Equal Protection Clause. This is because Section 1983 and the Equal Protection Clause require proof of discriminatory intent. Disparate impact, meanwhile, does not require a showing of discriminatory intent but discriminatory effect. 

The Court also rejects the "pattern and practice" claim. You don't see many "pattern or practice" cases in the Second Circuit, probably because they are expensive to litigate and difficult to prove. The Second Circuit provides a brief overview of how these cases work. The plaintiff's prima facie case must show a policy, pattern or practice of intentional discrimination against a protected class. Statistics can get you there if a gross disparity exists. The employer then has to show that the statistical evidence is insignificant or inaccurate. What knocks out the plaintiffs' claim is that under "pattern or practice," the plaintiffs have to show that the entity engaged in intentional discrimination. Here, the plaintiffs are suing individual defendants under this theory of discrimination. The Court says:

But statistics showing entity-level discrimination shed little light on whether a particular individual defendant engaged in purposeful discrimination. Just as statistics alone are insufficient to establish a prima facie case under the McDonnell Douglas framework, statistics demonstrating employer-wide discrimination are insufficient to establish which individual defendants engaged in purposeful discrimination. Statistical disparities may be, and often are, attributable to a subset of actors–not to every actor who had an opportunity to discriminate.

Thus, to import the pattern-or-practice framework into the Equal Protection context would substantially circumvent the plaintiffs’ obligation to raise a prima facie inference of individual discriminatory intent. If “[s]tatistics alone [could] make out a prima facie case of discrimination,” plaintiff could shift the burden to the defendant without any showing of individual discriminatory intent. Such a result would seem to contravene well-established precedent that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause” in a claim brought pursuant to § 1983.

In other words, "Proffering statistical evidence that purports to show discrimination at an entity and naming as defendants all of the individuals who could possibly be responsible for such discrimination may support an inference that one or more of the named individual defendants committed acts of intentional discrimination. But such evidence provides little or no basis for discerning which individual  defendants are responsible for the statistical disparities."