Statistical evidence can win a Title VII case, but ...

The Court of Appeals holds for the first time that statistical evidence can win a Title VII pattern and practice class action, but it had better be good statistical evidence. That evidence was not good enough in this case.

The case is Burgis v. New York City Department of Sanitation, decided on July 31. Plaintiffs claim they were denied promotions because of their race and national origin. They challenge the Department's promotional practices as discriminatory. Since 1979, certain promotions to the General Superintendent position are done on the basis of supervisory recommendations. "Plaintiffs allege that by using recommendations in this way, DSNY has created a supervisory workforce that is not representative of the racial and/or national origin composition of the sanitation worker workforce." Statistics in the complaint show a racial/national origin disparity, i.e., while 56 percent of the Sanitation Workers are white, 23.5 percent are black and 18 percent are Hispanic, 81-91 percent of the General Superintendents are white and 3-13 percent of them are black and Hispanic.

Plaintiffs claim statistics alone can warrant a plausible inference of discrimination under Iqbal pleading standards. Not so fast, the Court of Appeals (Hall, Calabresi and Rakoff [D.J.]) says.

This is an issue of first impression for this Circuit in the context of a putative class action alleging employment discrimination under § 1981 and/or the Equal Protection Clause. We now hold that, as some of our Title VII cases have hinted, in certain circumstances (described below), statistics alone may be sufficient. ... However, to show discriminatory intent in a § 1981 or Equal Protection case based on statistics alone, the statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely. 

After reminding us that statistics alone are not enough to win an individual disparate treatment case, the Court holds that the numbers in this class action are not enough.

Plaintiffs have failed to allege statistics that meet the standards articulated above. Among other shortcomings, the statistics provided by plaintiffs show only the raw percentages of White, Black, and Hispanic individuals at each employment level, without providing any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level. ... Furthermore, the fact that each of the plaintiffs has been promoted at some point to the position of supervisor undermines their allegations of discrimination in the promotion of sanitation workers to supervisors.