Lead Opinion
Oрinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.
Title VII of the Civil Rights Act of 1964
To resolve this appeal we have had to plumb some of the deepest complexities of Title VII adjudication. After careful review, we affirm the District Court’s liability determination in its entirety. We also affirm the trial court’s decision to use a class-wide backpay remedy, but we vacate the backpay formula imposed and remand for reformulation of the particular backpay award. We also vacate the part of the District Court’s remedy that mandates promotion goals and timetables. We do not hold that such remedies exceed a court’s remedial authority under Title VII. Nor do we hold that such remedies violate the Constitution. Nonetheless, we find that the District Court’s particular order of goals and timetables was not appropriate on the current factual record. Because the front-pay remedy was specifically linked to the promotion goals and timetables, we vacate that part of the remedial order as well, and remand to the District Court for further consideration of appropriate remedies.
I. Background
DEA, an agency formed in 1973 within the Justice Department, enforces this nation’s federal criminal laws concerning the illegal sale, distribution, and use of drugs. Establishing DEA, the federal government sought to consolidate drug enforcement efforts that had theretofore been spread among several agencies. “Special agents” carry on the bulk of DEA’s criminal investigative work. DEA employs about 2,000 such agents, and as of 1978 seven percent were black. Special agents perform surveillance of suspected drug dealers, transact “buys” of drugs as evidence for prosecutions, do related undercover work, develop cases for prosecution by United States Attorneys, and, depending on their rank, supervise other special agents. Findings of Fact (Findings) ¶¶11-2,
The District Court made extensive findings of fact concerning DEA’s employment practices. See Findings ¶¶ 1-51,
A. DEA’s Personnel Requirements
Hiring. The Civil Service Commission Handbook establishes the minimum entry level requirements for special agents. Depending on qualifications, special agents will enter at either GS-7 or GS-9. The requirements for entry at GS-7 are three years of general experience and one year of specialized experience. The requirements for GS-9 are three years of general experience and two years of specialized experience.
Work Assignments. Special agents carry out the variety of assignments described above. Race influences the location of an agent’s assignment. All other things being equal, DEA will assign black agents to areas where a large percentage of the suspected violators are black. Race also influences the type of work agents receive. Black agents tend to perform a disproportionately large amount of undercover work. DEA generally infiltrates drug networks from the bottom up, and operates on the assumption that black agents will be more readily able to infiltrate organizations consisting primarily of blacks. The nature of an agent’s work assignments will have an important bearing on the agent’s prospects for promotion. Though some undercover work is desirable, a surfeit of such work injures an agent’s promotion opportunities because the agent is unable to obtain the breadth of experience needed for promotions. Findings 11 23,
Promotions. At DEA promotions from GS-7 to GS-9, from GS-9 to GS-11, and from GS-11 to GS-12 are noncompetitive. A special agent receives a promotion upon completion of one year of service in grade, recommendation by the agent’s group supervisor, concurrence by a second level supervisor, and approval by a DEA regional director.
Promotions from GS-12 up through GS-18, the highest GS level at DEA, are competitive agency-wide. To receive such a promotion an agent must satisfy the minimum in-grade requirement, be placed on the “best qualified” list by the appropriate rating and ranking board, and be selected by the appropriate selecting official. In making determinations the rating and ranking boards rely primarily on thе agent’s most recent performance appraisal, information on disciplinary action within the last two years, and the agent’s application and profile sheet. Those agents chosen for the best qualified list are then ranked numerically on a series of performance factors.
B. This Lawsuit
In January 1977 two black special agents of DEA, and an association representing all black special agents, brought suit alleging that DEA had engaged in a pattern or practice of racial discrimination against black special agents in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (1976 & Supp. V 1981). These agents alleged discrimination in recruitment, hiring, initial grade assignments, salary, work assignments, evaluations, discipline, and promotions. See Complaint, Joint Appendix (JA) 22.
On September 9, 1977 the trial court, pursuant to Federal Rule of Civil Procedure 23(b)(2), certified the class of all blacks who then served or had had been discharged as special agents at DEA, and who had applied for positions or would in
1. The plaintiffs’ case. The plaintiffs presented a range of statistical and anecdotal evidence of discrimination. The statistical evidence included several multiple linear regression analyses as well as a number of studies considering the effects of particular employment practices.
Multiple regression is a form of statistical analysis used increasingly in Title VII actions that measures the discrete influence independent variables have on a dependent variable such as salary levels. See Valentino v. U.S. Postal Service,
The computer analysis will generally also yield two other measurements that assist in evaluation of the explanatory power of the regression. The first is “T-Ratio.” The T-Ratio measures the probability that the result obtained could have occurred by chance.
Having observed an average disparity in salary of about $3,000 between white and black special agents at DEA, plaintiffs’ experts, Professors Bergmann and Straszheim,
Plaintiffs’ experts selected education, pri- or federal experience, prior nonfederal experience, and race as the four independent variables that might explain the salary differential. Information regarding these in
RACE DATE COEFFICIENT T-RATIO
1/1/75 -$1,628 4.65
1/1/76 -$1,744 5.37
1/1/77 -$1,119 5.15
1/1/78 -$1,934 5.15
10/1/78 -$1,877 4.50
Findings 117b,
The race coefficient measures the salary disparities between white and black agents when education and prior experience are held constant. The T-Ratio figures here correspond to standard deviations of four or five. See D. Baldus & J. Cole, Statistical Proof of Discrimination 297 n. 14 (1980) (hereinafter “D. Baldus & J. Cole”). Since a standard deviation level higher than three indicates that the odds are less than one in a thousand that an observed result could have occurred by chance, these figures indicate that the odds are far less than one in a thousand that the observed disparities for any year could have occurred by chance. A study is generally considered to be statistically significant when the odds that the result occurred by chance are at best one in 20. See D. Baldus & J. Cole, supra, at 297.
Professors Bergmann and Straszheim then ran a second regression to measure salary disparities over the same time frame for agents hired after 1972. They intended this study to generate some measure of the effects of race discrimination at DEA after 1972. Title VII applies to DEA in this action only as of that date.
RACE DATE COEFFICIENT T-RATIO
1/1/75 -$ 378 .84
1/1/76 -$1,864 2.54
1/1/77 -$1,119 3.18
1/1/78 -$ 866 2.07
10/1/78 -$1,026 2.30
Findings IT 7d,
Again a significant salary disparity between agents with comparable education and experience was revealed. The T-Ratios indicate that for every year, save 1975, the possibility that the result could have occurred by chance was at most one in 20. Though these figures are not at as high a level of significance as were those of the first regression, they still meet the generally accepted test for statistical significance. The secоnd regression, moreover, tends to understate the amount of post-1972 discrimination at DEA. Because the post-1972 study measures discrimination among newer agents, the study focuses on the speed with which the new recruits make their way through the lower levels of DEA. Promotions at these levels are relatively automatic, and discrimination thus has less opportunity to work its effects. Discrimination will most adversely affect older agents contending for upper level positions; promotion decisions at these levels incorporate far more discretionary elements and leave more room for bias. See Part I-A supra. The study does not measure any post-1972 discrimination against those hired before 1972. Since these agents
Having uncovered evidence of significant discrimination in salary levels, plaintiffs’ experts undertook a more exacting inquiry into DEA’s employment practices to pinpoint where discrimination was taking place. They first examined DEA’s initial grade assignment practices. Through regression analyses they determined at a sufficient level of statistical significance that blacks were 16 percent less likely than comparably qualified whites to have been hired at GS-9 rather than GS-7. For those hired after 1972, blacks were 12 percent less likely to be hired at GS-9. Findings ¶ 9,
To buttress the statistical proof plaintiffs introduced anecdotal testimony of discrimination. This evidence consisted of accounts by several black agents of perceived discrimination against them in initial grade assignments, work assignments, supervisory evaluations, and discipline. These agents also testified about their general perceptions of racial hostility at DEA.
2. Defendant DEA’s case. DEA responded to plaintiffs’ case in several ways. The rebuttal consisted of expert testimony attacking the methodological integrity and explanatory value of plaintiffs’ statistics, alternative statistical analyses tending to show an absence of discrimination, testimonial evidence concerning DEA’s equal employment opportunity programs, and cross-examination of plaintiffs’ anecdotal accounts of individual discrimination.
DEA’s first expert was Dr. J. Wanzer Drane, an associate professor of statistics at Southern Methodist University. In his testimony he attacked the methodology of plaintiffs’ statistical analyses. He asserted that plaintiffs had failed in their analysis to account for thе relevant explanatory variable of prior law enforcement experience, and that the explanatory power of plaintiffs’ salary studies (the R2 and the T-Ratio) was too low. He also presented a more generalized critique of the suitability of the regression methodology for measurement of discrimination in the present situation. Findings II 7f-n,
To supplement this critique DEA offered an alternative statistical analysis that tended to show an absence of discrimination. This study — prepared by Dr. B.C. Spradlin, a consultant — was not a regression but an alternative statistical methodology known as cohort analysis. Under this approach all employees who start together at the same level are surveyed over the course of an observation period and their comparative progress in salary and promotion is evaluated. Evaluating promotion and salary disparities among DEA agents who started at the same year and grade level, Dr. Spradlin’s cohort analysis suggested significant discrimination in four of 15 groups. These four groups were broken into subgroups. Discrimination was found in two of the subgroups. DEA then examined the per
Testimonial evidence buttressed DEA’s statistical rebuttal. DEA presented extensive general testimony on its efforts to establish equal opportunity programs and implement equal opportunity goals at the agency. Through cross-examination of plaintiffs’ witnesses, DEA also sought to rebut every particular anecdotal account of discrimination.
C. The District Court Decision
1. The liability determination. Judge Robinson held that DEA had discriminated against black special agents in violation of Title VII across a range of employment practices. The court found that the salary differentials between white arid black agents were a result of race discrimination, and that DEA had discriminated against black agents in grade-at-entry, work assignments, supervisory evaluations, and promotions.
To make these deterriiinations the District Court credited the bulk of plaintiffs’ statistical evidence
2. The remedies determination. Having found pervasive discrimination at DEA, the District Court — in a separate remedial proceeding — set out to formulate an appropriate remedial plan.
Class-wide Backpay. Rather than order individualized relief hearings, see Int’l Brhd of Teamsters v. United States,
The annual backpay pool would be distributed evenly among eligible black agents. Only agents above the GS-9 level during the year in question were made eligible. The court excluded agents at GS-7 and GS-9 because most discrimination was found to occur at the higher levels of DEA. The court did, however, permit individual plaintiffs to come forward and seek backpay for discrimination suffered in initial grade assignment (viz. assignment to GS-7 instead of GS-9). Any such individual awards would be subtracted from the class-wide pool in order to prevent double liability. Mem.Op. at 3, JA 116.
Promotion Goals and Timetables. Finding discrimination at the upper levels of DEA, the District Court ordered remedial promotion goals and timetables. Since black agents made up at least 10 percent of agents at every level through GS-12 the court held that a 10 percent goal was appropriate for all levels above GS-12. Mem.Op. at 4, JA 117. To meet this goal the court ordered DEA to promote one black agent for every two white agents until 10 percent black representation had been met at GS-13 and above (or until five years had passed). Id.
Class-wide Frontpay. To compensate black agents awaiting promotion under the goals and timetables plan the court established a class-wide frontpay formula. Frontpay pool calculations were also based on extrapolations from the salary regression, but the pool was to be adjusted to reflect progress DEA had made under the promotions goals and timetables. Remedial Order at 9-12, JA 126-129. The pool was to be distributed to all black agents at GS-12 for at least two years and all black agents above GS-12.
3. Other issues. In the course of the proceeding two other issues arose. Plaintiffs sought and were refused an award of prejudgment interest on the backpay awards. See Mem.Op. at 3 n. 4, JA 116 n. 4. Also, during the time between the liability and remedial determinations the court issued a preliminary injunction barring demotion or transfer of' black special agent Carl Jackson. See Memorandum Opinion and Order of May 5, 1981, JA 101. Shortly after Jackson had testified at trial in this case he became the target of harassment and eventually of .adverse employment actions including demotion and transfer. The District Court concluded that there was a high likelihood that these actions were in retaliation for Jackson’s testimony, and therefore preliminarily enjoined Jackson’s demotion or trаnsfer.
D. The Appeal.
DEA appeals several aspects of both the liability and the remedial determinations, and also challenges the Jackson injunction. Plaintiffs cross-appeal from the denial of prejudgment interest. We will consider separately DEA’s challenges to the liability decision, the remedial decision, and the Jackson injunction. We will then consider plaintiffs’ claim for prejudgment interest.
II. The Liability Determination
A. Framework for Analysis
A plaintiff in a Title VII action can prove liability under two theories: disparate treatment or disparate impact. In a disparate treatment claim a plaintiff seeks to prove that an employer intentionally “treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, supra,
In a disparate impact claim a plaintiff challenges “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. at 336 n. 15,
Proceeding under the disparate treatment theory, plaintiffs in this case allege a pattern or practice of illegal discrimination at DEA. Proceeding under the disparate impact theory, plaintiffs also challenge a number of DEA’s specific employment practices — initial grade assignments, work assignments, supervisory evaluations, discipline, and promotions decisions. Thus plaintiffs challenge both the entirety of DEA’s employment system and several specific components of that system. To establish a framework for analysis of these allegations, we will first examine the sequence and allocation of proof in a class action alleging a pattern or practice of disparate treatment and alleging disparate impact with respect to specific employment practices. We will then locate within that framework the approach that the parties have taken in joining the liability issue in this case.
1. Sequence and allocation of proof. Functionally the disparate treat
Though allocations of proof differ in this crucial way, an important point of convergence exists in class actions like the present case. Both pattern or practice disparate treatment claims and disparate impact claims are attacks on the systemic results of employment practices. The pattern or practice claim amounts to an allegation that an observed disparity is the systemic result of an employer’s intentionally discriminatory practices. The disparate impact claim amounts to an allegation that an observed disparity is the systemic result of a specific employment practice that cannot be justified as necessary to the employer’s business. Consequently the proof of each claim will involve a showing of disparity between the minority and majority groups in an employer’s workforce. These two factors — the difference in ultimate burden of proof and the similarity in proof of disparity — must inform our understanding of the intermediate burdens that the parties to such an action face.
A plaintiff class seeking to show a pattern or practice of disparate treatment must “carry the initial burden of offering evidence adequate to create an inference that” employment decisions were “based on a discriminatory criterion illegal under the Act.” Teamsters, supra,
A defendant must tailor its response to the nature of the plaintiff’s proof. Teamsters, supra,
a. Challenges to the plaintiffs’ proof Challenging the accuracy or significance of plaintiffs’ proof, a defendant seeks to show that the alleged disparity on which plaintiffs’ case is bottomed does not exist. Such a defense can of course be raised against both a disparate treatment and a disparate impact claim. Typically the challenge will focus on the integrity of the plaintiffs’ statistical methodology and the significance of the results shown. Often the defendant will supplement the critique with alternative statistical analyses tending to refute the plaintiffs’ evidence of disparity. The defendant need not carry the burden of persuasion as to the nonexistence of a disparity; on the disparate treatment claim “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff,” Burdine, supra,
The defendant’s rebuttal must, however, at least raise a genuine issue of material fact concerning the accuracy of the picture painted by the plaintiffs’ statistics. And introduction of evidence sufficient to raise a genuine issue of material fact does not necessarily vindicate the defendant. Burdine, supra,
b. The explanatory defense. Alternatively, a defendant can attempt to show that any observed disparities between plaintiffs and the majority group did not result from discrimination violative of Title VII. The requirements of such a rebuttal will vary according to the type of claim the defendant seeks to rebut. To rebut a disparate impact challenge to a specific employmеnt practice causing a disparity the employer must prove the business necessity of the practice. See Albemarle Paper Co., supra,
The nature of the burden that the defendant bears on such a defense is not entirely free of doubt. The defendant must at least make a “clear and reasonably specific showing,” based on admissible evidence, that the alleged nondiscriminatory explanation in fact explains the disparity. Burdine, supra,
In an individual case a defendant’s nondiscriminatory explanation serves only to undermine the inference of discrimi
When a defendant in a pattern or practice class action offers such an explanation, the circumstances differ in two crucial ways. First, to make an initial showing of disparate treatment in such eases the plaintiff class will typically have presented statistical evidence showing pervasive disparities and eliminating most, if not all, potential nondiscriminatory explanations for the observed disparities. See Vuyanich II, supra,
In saying that the presumption [of discrimination] drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there may be some cases where the plaintiffs initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.
Second, the employer’s effort to rebut the pattern or practice claim by articulating a legitimate nondiscriminatory explanation may have the effect of putting before the court all the elements of a traditional disparate impact case. By its explanation of an observed disparity the employer will typically pinpoint an employment practice (or practices) having a disparate impact on a protected class. And to rebut plaintiffs’ case the employer will typically be required to introduce evidence showing that the employment practice in fact caused the observed disparity. See Burdine, supra,
The only difference between this situation and the traditional disparate impact case is that in the latter the plaintiff articulates the employment practice causing the adverse impact and forces the employer to defend it, while in the former the employer articulates the employment practice and must then go on to defend it. Accord Vuyanich II, supra,
As a practical matter, this issue arises in a context that renders such concerns largely irrelevant. An employer will face the justificatory burden only after a plaintiff class has shown a disparity in the positions of members of the class and the majority group who appear to be comparably qualified; if plaintiffs fail to make their prima facie case, the employer never faces this justificatory burden. But if the plaintiffs have made their prima facie case, the employer, to avoid liability under the disparate treatment theory, will have to advance some nondiscriminatory explanation for the disparity. An employer’s claim that it cannot isolate the cause of the disparity will be unlikely to deflect the force of the inference of discrimination from plaintiffs’ proof. The defendant will in all likelihood point to a specific job qualification or performance/evaluation rating as the explanation for the observed disparity. Thus application of disparate impact in this situation will not, the fears of the Pouncy court notwithstanding, place on the employer any additional burden of articulation; to rebut the disparate treatment claim the employer will have had to articulate which employment practices cause an observed disparity. Nor will the employer be forced to justify all of its employment practices. The employer will be required to show the job relatedness of only the practice or practices identified as the cause of the disparity-
The concerns of Pouncy and Rivera are no more compelling on the theoretical level. The employer will possess knowledge far superior to that of the plaintiff as to precisely how its employment practices affect employees. This fact, as the Fifth Circuit noted in Pouncy,
2. Locating this controversy within the analytical framework. Plaintiffs, utilizing disparate treatment analysis, challenge the entirety of DEA’s employment system, and, utilizing disparate impact analysis, challenge several particular employment practices in that system (DEA’s procedures for initial grade assignments, discipline, supervisory evaluations, and promotion). In their disparate impact claims plaintiffs seek to show that these specific practices have an adverse effect on black agents, and thereby to force DEA to prove the business necessity of the challenged practices. In their disparate treatment claim plaintiffs seek to show that they are treated less well than comparably qualified white agents. Evidence of overall salary disparities, buttressed by evidence of the specific places in DEA’s employment system where discrimination occurs, supports this challenge. Whether this overall challenge will also raise disparate impact issues beyond those already raised by plaintiffs’ challenges to several specific DEA employment practices depends on the nature of DEA’s defense. See Part II-A-l-b supra.
DEA has channelled the bulk of its efforts into an attempt to show that plaintiffs’ proof of disparity is either inaccurate or insignificant. DEA has bifurcated this attack into separate claims that plaintiffs’ statistical proof is deficient and that DEA’s proof in any event refuted plaintiffs’ attempt to show race-related disparities. Though made separately, both arguments go to the question whether plaintiffs have met their burden of persuasion as to the existence of race-related disparities.
Subsumed in DEA’s rebuttal are several specific legal issues. DEA claims that plaintiffs’ initial case is deficient as a matter of law for two reasons. First, the regression analyses on which plaintiffs’ case is bottomed do not account for all “minimum objective qualifications” for the special agent positions at issue. See Davis v. Califano,
Preferring to rely on a direct attack on the evidence showing race-related dispari
B. Analysis of the Liability Issues For the sake of clarity and congruence with the form of argument presented to us, we will separate our analysis along the lines suggested by the parties’ arguments. First we will examine the sufficiency of plaintiffs’ offer of proof in light of DEA’s attack on the methodology and results of plaintiffs’ statistical analyses. Then we will examine the strength of DEA’s evidence, and consider DEA’s allegations of error. Both lines of inquiry must, however, lead us toward resolution of the ultimate issue: In weighing all the evidence, did the trial court correctly conclude that plaintiffs carried their burden of persuasion as to the existence of illegal discrimination at DEA.
1. The sufficiency of plaintiffs’ initial case. A “general principle” of disparate treatment adjudication requires the plaintiff to “carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Teamsters, supra,
The present case typifies class actions alleging a pattern or practice of dis-
A pattern or practice case challenges a host of employment decisions over time; in effect, it challenges an employment system. The most common nondiscriminatory explanation for a systemic disparity in treatment is a lack of qualifications among the minority group members. A plaintiff’s statistical evidence must therefore focus on eliminating this nondiscriminatory explanation by showing disparities in treatment between individuals with comparable qualifications for the positions at issue. Hazelwood School District, supra,
Once the plaintiffs’ analysis has focused on the proper groups for comparison, it must yield results that meet generally accepted standards of statistical significance. In other words, both the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination.
a. Methodology: minimum objective qualifications. To ensure that a plaintiff’s methodology has eliminated the common nondiscriminatory explanation of a lack of qualifications, this circuit has developed a requirement that statistical evidence of disparities account for the minimum objective qualifications for the positions at issue. DeMedina, supra,
In the present case DEA has challenged plaintiffs’ salary regression analyses on the ground that they fail to account for a minimum objective qualification: specialized prior experience in criminal investigations. The burden of DEA’s argument is that the failure to include this factor skewed all of plaintiffs’ studies because the lower salaries and less rapid promotions of black agents can in large measure be traced to the fact that black agents lack prior criminal investigative experience and therefore enter DEA at a lower grade level. This court must determine whether the failure of plaintiffs’ analyses to account
Special agents enter DEA at either the GS-7 or the GS-9 level. The requirements for the two entry levels are set forth in the Civil Service Commission Handbook, x-118, and have been summarized in a stipulation of the parties, Joint Exhibit I, JA 39. The requirements for GS-7 are three years of general experience and one year of specialized experience. JA 39. The requirements for GS-9 are three years of general experience and two years of specialized experience. Id. General experience is defined as:
[Progressively responsible experience which has required (1) ability to work or deal effectively with individuals or groups of persons; (2) skill in collecting and assembling pertinent facts; (3) ability to prepare clear and concise reports; and (4) ability and willingness to accept responsibility.
Id. Specialized experience is defined as:
[P]rogressively responsible investigative experience which demonstrates (1) initiative, ingenuity, resourcefulness, and judgment required to collect, assemble and develop facts and other pertinent data; (2) ability to think logically and objectively, to analyze and evaluate facts, evidence, and related information, and arrive at sound conclusions; (3) skill in written and oral reports and presentation of investigative findings in a clear and concise manner; and (4) tact, discretion, and capacity for obtaining the cooperation and confidence of others.
Id. at 40. In addition, special agents at both GS-7 and GS-9 are criminal investigators, JA 41, and one year of their prior specialized experience must be in criminal investigative work or other comparable work. JA 40.
Extrapolating, we see, first, that every special agent hired, whether at GS-7 or GS-9, must have at least one year of prior specialized experience in criminal investigative work, and, second, that the only difference between those hired at GS-7 and those hired at GS-9 is one additional year of specialized experience as defined above. According to the stipulation, this additional year need not be in criminal investigations.
These facts severely undermine DEA’s argument. The claim that plaintiffs’ statistics have wholly failed to account for prior experience in criminal investigations is inaccurate. Plaintiffs studied only those whom DEA had already hired. Every one of them must have met the basic Civil Service requirement of one year of prior criminal investigative experience to have been hired even at the GS-7 level. Thus DEA’s claim that plaintiffs’ studies “took no account of basic experiential requirements,” brief for appellants at 60, is incorrect according to the facts to which DEA stipulated. Plaintiffs’ studies did not specifically account for criminal investigative experience over and above this one year that all special agents possess. But— again according to the stipulated facts— criminal investigative experience above the one year minimum is not a requirement for entry at GS-9 instead of GS-7. Rather, the additional requirement for entry at GS-9 is a second year of “specialized experience” as defined in the Civil Service Commission Handbook. Plaintiffs’ failure explicitly to account for additional years of prior criminal investigative experience therefore cannot be viewed as an omission of a minimum objective qualification.
The only possible omission of a minimum objective qualification in this case would be plaintiffs’ failure to account specifically for
First, the operative Civil Service definition of “specialized experience” is highly subjective. It measures such intangibles as “ingenuity,” “resourcefulness,” “ability to arrive at sound conclusions,” “tact,” and “discretion.” JA 40. The law is clear that a plaintiff’s proof must account for objective qualifications; exclusion of subjective requirements, such as those encompassed in the definition of “specialized experience,” is entirely proper. See Davis v. Califano, supra,
Second, plaintiffs were not realistically able to account for the application of so amorphous a criterion as the Civil Service definition of “specialized experience.” This circuit has recognized that “[t]he appropriate degree of refinement of the plaintiffs’ statistical analysis * * * may depend on the quality and control of the available data.” Trout v. Lehman, supra,
Third, even if we accept arguendo that a second year of specialized experience — or, for that matter, of criminal investigative experience — is a minimum objective qualification, DEA’s objections would still fall short in a crucial respect. A strong argument exists that рlaintiffs’ regressions have implicitly accounted for this variable. Apart from the unsubstantiated declamations of DEA’s appellate attorneys, nothing in the record so much as hints that black special agents are less likely than white special agents to possess this qualification. The labor pool that plaintiffs’ experts studied comprised only those whom DEA had already hired. All of these individuals had at least one year of prior criminal investigative experience. There is simply no reason to assume that the blacks in such a
This high degree of homogeneity of qualifications among those in the labor pool distinguishes the present case from Valentino, supra, where the court did not employ a presumption of equal qualifications. In Valentino the court found that “[i]n the setting [of the case] it would be irrational to assume ‘equal qualifications’ to fill engineering or secretarial vacancies among persons educated the same number of years and employed by the government for the same length of time.”
Since DEA has presented no admissible evidence that black agents are more likely than white agents to lack a second year of requisite experience, plaintiffs’ failure to account for this variable does not dilute the force of their statistical analysis; in the language of the statistician, absent any reason to conclude that the omitted factor correlates with race, the omission of the variable will not affect the validity of the race coefficient in plaintiffs’ regression analysis. See D. Baldus & J. Cole, supra, at 273; Vuyanich I, supra,
Though any one of the above reasons would have justified plaintiffs’ decision to exclude “specialized experience” as a variable, we note the multiplicity of proper objections to use of this criterion in order to highlight the weakness of this aspect of DEA’s challenge. In sum, plaintiffs’ statistical proof cannot be faulted for any failure to focus on a population that “closely approximates the characteristics” of those eligible for the positions at issue. DeMedina, supra,
b. Explanatory power. DEA also challenges the explanatory power of plaintiffs’ statistical evidence. As a threshold matter DEA argues that because the trial court did not credit any of plaintiffs’ specific anecdotal accounts of discrimination, see Part I-C & n. 10 supra, plaintiffs could not make out a prima facie case unless their statistics showed “gross disparities” of treatment. See Hazelwood School District, supra,
i. The effect of a lack of anecdotal evidence. Anecdotal testimony recounting personal experiences of discrimination plays an important role in Title VII litigation. “Such testimony may ‘[bring] the cold numbers convincingly to life.’ ” Valentino, supra,
DEA urges that the converse is equally true; when anecdotal evidence is lacking, statistical evidence must show, as a matter of law, not merely disparities in treatment, but “gross disparities.” This argument derives from one sentence in Hazelwood School District, supra'. “Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”
Neither Hazelwood nor any other Supreme Court precedent supports a rule that statistical proof of the kind presented in this case is insufficient absent anecdotal evidence. To make a prima facie case plaintiffs must meet the functional standard of Teamsters, Bur dine, and Furnco; they must present evidence sufficient to support an inference of discrimination. All evidence that a plaintiff presents can contribute to this inference, and should therefore be considered as cumulative. EEOC v. American National Bank,
Read in context the language in Hazel-wood on which DEA places so much weight will not bear the meaning DEA seeks to impose on it. In the immediately preceding passage the Court, quoting from Teamsters, stated: “Evidence of longlasting and gross disparity between the composition of a workforce and that of the general population may thus be significant * *
Statistics, of course, “are not irrefutable,” Teamsters, supra,
In the present case plaintiffs rely on statistical evidence that has been demonstrated to be fine-tuned to the relevant labor pool. See Part II-B-l-a supra. This case is, in other words, a far cry from Hazelwood. If plaintiffs’ statistical proof standing alone permits an inference that DEA’s employment decisions were more likely than not based on race, then this proof suffices irrespective of the presence of supporting anecdotal evidence. Moreover, were we to require anecdotal evidence plaintiffs would still meet their prima facie burden. Although DEA adequately rebutted most testimony regarding specific instances of discrimination,
ii. The sufficiency of plaintiffs’ showing of disparities. Although plaintiffs need not show enhanced or “gross” disparities, they must present evidence that permits an inference of discrimination under the test of Burdine, Teamsters, and Furnco. DEA raises two issues with respect to the sufficiency of plaintiffs’ showing under this test. The first issue involves the magnitude of actionable discrimination shown in plaintiffs’ statistics; DEA argues that the District Court improperly relied on non-actionable pre-1972 discrimination reflected in the statistics in finding a prima facie case of discrimination. The second issue involves the statistical significance of the disparities in plaintiffs’ regressions.
The magnitude of actionable disparity. DEA has made a very cursory argument that appellees’ statistical showing is flawed because the statistics in part reflect pre1972 discrimination. The brevity of DEA’s analysis offers little clue as to the import of this alleged “flaw.” We do not understand DEA to be contending that the District Court based its finding of discrimination on the erroneous legal premise that pre-1972 discrimination was independently actionable, for the court explicitly indicated that “Title VII is applicable to DEA only for post-1972 discrimination.” Findings 117d,
Despite the shortcomings of DEA’s analysis, we have considered with care the possibility that erroneous consideration of pre1972 discrimination may have infected the lower court’s liability determination. This question commands our attention in light of the Supreme Court’s recent decision in another Title VII case, Lehman v. Trout, — U.S. -,
Though the plaintiffs’ statistics in Trout reflected both pre- and post-1972 discrimination, the District Court found the statistics sufficient to support an inference of post-1972 disparate treatment. In dismissing the defendants’ objection to the use of the pre-1972 data the court indicated, inter alia, that “[i]t is likely that such discrimination before 1972, even if coupled with neutral employment practices since then, produced actionable continuing discriminatory effects after 1972 * * Trout v. Hidalgo, supra,
Although the Supreme Court found no fault with our understanding of Title VII principles in Trout, the Court vacated and remanded to this court with instructions to remand “to the District Court for findings of fact, based on new evidence if necessary, on the question what evidentiary value respondents’ and petitioners’ statistical evidence has in light of the Court of Appeals’ conclusions of law concerning employment decisions that are not actionable in this case. See Pullman-Standard v. Swint,
At least in the context of this case, the message to be gleaned from Trout is that we must proceed with caution if the trial court has made an error of law in finding discrimination, lest we invade the factfinding prerogative of the District Court. If the District Court has found a prima facie case of discrimination “because of an erroneous view of the law,” Pullman-Standard, supra,
In this case we have no trouble concluding that the teachings of Pullman-Standard and Trout do not warrant reversal of the District Court on the ground that the court used some statistics that might reflect pre-1972 discrimination. DEA has not argued on appeal that the use of data reflecting pre-1972 discrimination affected any aspect of the District Court’s liability determination other than the findings of salary disparities.
First, as we have explained, the court properly could consider evidence that may have reflected pre-1972 discrimination in determining that a prima facie case was established. In considering plaintiffs’ first regression, which included data on employees hired before 1972, the court acknowledged that it was theoretically possible “that pre-1972 discrimination might affect” the regression. Findings ¶ 7h,
Given these factual findings the lower court certainly could, and did in fact, permissibly conclude that the first regression established a prima facie case of post-1972 discrimination, and these findings plainly indicate that the District Court did not consider a continuing effects theory to be essential to its finding that a prima facie case of post-1972 discrimination was established.
Second, the District Court’s finding that plaintiffs established a prima facie case of discrimination in salaries was independently based on statistics pertaining only to employees hired after 1972. The court reviewed these statistics and found that the salary disparities were “statistically significant at or below the .05 level for every year since 1975.” Findings ¶17d,
In light of the foregoing, we conclude that consideration of some data that might hypothetically reflect continuing effects of pre-1972 discrimination does not dictate reversal of the District Court’s liability determination. The District Court’s opinion clearly indicates that the court based this determination independently on evidence that did not reflect such discrimination. DEA has not argued otherwise. In these circumstances, due regard for the trial court’s role as finder of fact requires us to respect the independent bases on which the District Court grounded its liability determination. Accordingly, we conclude that the court’s findings are not “infirm because of an erroneous view of the law.” Pullman-Standard, supra,
The statistical significance of the disparities shown. DEA also argues that plaintiffs’ salary regressions did not achieve a level of statistical significance sufficient to permit an inference of discrimination.
Without deciding whether a plaintiff’s initial case might suffice even without meeting the .05 level of significance,
Plaintiffs’ evidence regarding promotions stands on a somewhat different footing. Disparity was demonstrated at a statistically significant level in promotions from GS-11 to GS-12. This evidence suffices to support the requisite inference of discrimination at the GS-11 to GS-12 level. Statistical evidence purporting to show discrimination in promotions above GS-12 did not achieve acceptable levels of statistical significance. Thus, as the trial court correctly found,
Nonetheless, we hold that the District Court correctly found that enough other probative evidence exists to permit an inference of discrimination in promotions above the GS-12 level. In the first place, plaintiffs’ evidence regarding promotions above GS-12 was not dispositive either way on the issue of discrimination. Since so few promotions occurred at the higher levels of DEA during the relevant time frame, plaintiffs had to rely on a sample too small to generate statistically significant evidence of discrimination.
2. The insufficiency of DEA’s rebuttal case. DEA also claims that the trial court erred in its evaluation of DEA’s case on rebuttal. DEA first points to two errors of law that purportedly skewed the trial court’s evaluation of DEA’s rebuttal case: (1) the trial court erroneously placed on DEA a burden of persuasion instead of a burden of production, and (2) the trial court erroneously refused to admit into evidence at the remedial stage of the proceeding DEA’s alternative regression analyses. On top of these legal errors, DEA claims, the trial court improperly devalued DEA’s rebuttal evidence. DEA contends that in light of these errors and the vulnerability of plaintiffs’ initial case, the trial court erred in finding discrimination.
a. The trial court’s allocation of burdens. In a Title VII case alleging disparate treatment the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, supra,
The burden of proof in Title VII litigation always remains on the Plaintiff. After the establishment of a prima facie case, however, the burden of persuasion shifts to the employer. This burden requires the Defendant to “articulate some legitimate, nondiscriminatory reason.” * * * If the Defendant meets the rebuttal burden, the Plaintiff has an opportunity to show that the apparently legitimate reason is, in fact, a pretext. * * *
A clarification that the trial court issued should remove any doubt on this score. The Supreme Court decided Burdine one month after the trial court issued its opinion in this case. Shortly after the Court issued Burdine plaintiffs in this case requested a clarification of the trial court’s conclusions of law with regard to the applicable burdens of proof. The court responded that it had allocated burdens in conformity with Burdine. See Order of April 30, 1981, JA 99.
This clarification is sufficient reason to distinguish the present case from Freeman v. Lewis,
b. The decision not to admit DEA’s alternative regression analysis. In deciding the liability issues the trial court admonished DEA for failing to substantiate its attack on plaintiffs’ statistics by reworking their analysis.
DEA argues on appeal as though this rejected evidence were part of the record, see, e.g., brief for appellants at 69-71, but it is not. Nonetheless we must consider whether the trial court properly excluded the evidence.
In a bifurcated trial the judgment on liability remains interlocutory, and thus subject to the trial court’s modification, until the remedial order issues. Marconi Wireless Telegraph Co. v. United States,
Trout v. Lehman dealt with the precise issue before us in this case. We found that a trial court had not abused its discretion in refusing a defendant’s proffer of rebuttal statistics at the remedial phase of the Title VII trial. Two factors underlay the decision: “the evidence * * * could have been discovered and presented at trial by a duly diligent defendant,” and the defendants “offered no good reason whatsoever to explain why their statistical analyses were not produced at trial.” Id. Though the Supreme Court vacated the Trout decision, it did so for reasons wholly unrelated to the question of admissibility of liability evidence at the remedial stage. In fact the Court’s remand implicitly approved this circuit’s holding that the trial court had not abused its discretion in refusing to admit the evidence; while requiring the District Court to make new factual findings with respect to discrimination, the Supreme Court did not require the District Court to consider the evidence defendant proffered at the remedial stage, or any other new evidence. Lehman v. Trout, supra, — U.S. at -,
In light of the intrinsic strength of the Trout reasoning on this point, and the Court’s implicit approval of that reasoning, we follow Trout here. Plaintiffs filed the complaint in this action in January 1977 and the case came to trial in April 1979. DEA made use of statistical experts, and did offer extensive statistical evidence at the liability phase. Without a doubt, DEA had the time and the resources to develop and present its alternative regressions then. And DEA’s arguments at the remedial hearing and on appeal contain not a word of justification for its failure to do so. In light of this unjustified omission, the trial court certainly did not abuse its discretion in refusing to admit DEA’s alternative regressions.
c. The trial court’s evaluation of DEA’s cohort analysis. Though its regressions were rejected at the remedial stage, DEA did properly introduce during the liability phase a cohort analysis to rebut plaintiffs’ showing of disparity. Cohort analysis is another method to test for race discrimination. Under this approach all employees who start together at the same level are surveyed over the course of an observation period and their comparative progress in salary and promotions is evaluated. DEA’s expert divided the special agents into 15 cohort groups, each group comprising agents who started in the same year and at the same initial grade level. The analysis revealed discrimination in four of thе 15 groups. For purposes of further evaluation, these four groups were broken into subgroups. Discrimination was still present in two of the subgroups. After examining the files of agents in these two subgroups, DEA discovered that three
We would overturn the District Court’s evaluation of this evidence only if we were to find that evaluation clearly erroneous. Though the District Court may have overstated a bit when it labeled cohort analysis “an untried method of statistical study, unsupported in any published statistical work or judicial decision,”
Courts have viewed cohort analysis in this area with a wary eye, see Valentino, supra,
3. Weighing the evidence. The analytic application of Title VII’s formulaic rules for shifting burdens can come to resemble a furious tennis match. When the volleying is over, however, a Title VII case is like all others: the trier of fact must weigh the plaintiff’s proof and the defendant’s rebuttal and decide whether plaintiffs have met the ultimate burden of persuasion that the law imposes on them. See U.S. Postal Service Bd. of Gov. v. Aikens,
Plaintiffs brought in a battery of statistics to prove discrimination at DEA. Their analyses tended to show significant salary disparities between comparably qualified white and black special agents, and discrimination in DEA’s initial grade assignments, work assignments, supervisory evaluations, promotions, and imposition of discipline. In response DEA sought primarily to east sufficient doubt on the existence of race-related disparities to prevent plaintiffs from carrying their burden of persuasion.
To do so DEA argued that plaintiffs were required to show “gross disparities” because they had failed to produce any credited individual anecdotal accounts of discrimination. We have held that, as a matter of law, plaintiffs were not required to meet this enhanced threshold of “gross disparities.” See Part II-B-1-b-i supra. DEA also argued that plaintiffs’ salary regressions had failed to show actionable dis
Even if this argument is insufficient to invalidate plaintiffs’ prima facie case, it might nonetheless serve as a legitimate nondiscriminatory explanation for the observed disparities between white and black agents. In other words, even if plaintiffs’ omission did not preclude them as a matter of law from making their initial case, DEA’s explanation might serve to preclude the ultimate inference of discrimination against black agents under the disparate treatment theory. Claiming that this factor, not race, explains the disparities, DEA has in effect made such an argument. To rebut plaintiffs’ disparate treatment claim DEA need not carry the burden of persuasion as to this legitimate nondiscriminatory explanation. See Burdine, supra,
The District Court did not find this rebuttal sufficiently strong to preclude the ultimate inference of discrimination. On review we cannot say that the court erred in this assessment. DEA has introduced no admissible evidence that this alleged differential in prior law enforcement experience exists. As we have noted, there is no reason to assume that black agents in a group with one year of prior criminal investigative experience are more likely than white agents in that group to lack a second year of such experience. See Part II-B-l-a supra. Nor has DEA presented any admissible evidence that the purported differential in law enforcement experience explains the observed disparities.
Absent such evidence, we are left, as the trial court noted, with mere speculation and conjecture. See
On balance, we find no reversible error in the District Court’s overall assessment of the evidence. The court properly attributed probative weight to plaintiffs’ statistical analyses, and properly rejected the three aspects of DEA’s case on rebuttal — the need for gross disparities, the insufficiency of the statistical studies, and the purported failure to account for prior law enforcement experience. In light of these findings, the court appropriately held that DEA had engaged in a pattern or practice of discrimination against black special agents,
4. Disparate impact analysis of DEA’s rebuttal evidence. We note finally that even had DEA succeeded in rebutting plaintiffs’ disparate treatment case by making a credible showing that the differential in prior law enforcement experience explained the observed disparity, DEA would have done no more than create a situation ripe for resolution under the disparate impact theory. See Part II-A-1-b supra. According to DEA’s argument, black special agents appear to do less well throughout the range of DEA’s employment system because they tend to start lower in that system as a result of their relative lack of more than one year of prior law enforcement experience. This boils down to a claim that DEA’s requirement of a second year of law enforcement experience for entry at GS-9 instead of GS-7 has an adverse impact on blacks because they tend to lack that qualification. Between plaintiffs’ and defendants’ proof, the trier of fact would have had before it all the elements of a traditional disparate impact claim: plaintiffs had shown a disparity and defendant had pinpointed the facially neutral employment practice causing the disparity. In this situation the trial court would properly have applied the disparate impact analysis of Griggs, supra, and its progeny. Had DEA made a credible showing that the requirement of an additional year of law enforcement experience caused the disparity, DEA would have been required to show the job-relatedness of such a requirement. Griggs, supra,
II. The Remedies Determination
Section 706(g) of Title VII empowers a court that has found illegal discrimination to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay * * * or any other equitable relief as the court
The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g) the cоurts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination. This broad reading of the need for effective remedies * * * is intended to be preserved in this bill * * *.
Section-by-Section Analysis of H.R. 1746, accompanying the Equal Employment Opportunity Act of 1972 — Conference Report, 118 Cong.Rec. 7166, 7168 (1972). The Supreme Court has also stressed the breadth of this remedial power. See Albemarle Paper Co., supra,
Having found pervasive discrimination at DEA, the District Court fashioned a tripartite remedial scheme: class-wide backpay for those at GS-11 and above,
A. Individualized Hearings
DEA objects to the District Court’s decision to forego in this case the individualized relief hearings prescribed in Teamsters, supra,
Though Teamsters certainly raises a presumption in favor of individualized hearings, the case should not be read as an unyielding limit on a court’s equitable power to fashion effective relief for proven discrimination.
Applying these principles to the present controversy, we note at the outset that the District Court did not rush willynilly to impose class-wide relief. The court specifically ordered individual relief hearings where feasible. All claims of backpay for discrimination at levels below GS-11 will be resolved in individualized hearings. See Mem.Op. at 3, JA 116. At these levels individualized hearings are appropriate because a small number of discernible decisions as to initial grade assignment and promotions will be in issue for each agent. These determinations are akin to those in Teamsters, where the required hearings were to involve a single determination as to whether individual plaintiffs had applied and were qualified for particular line driver positions in the trucking industry.
After careful consideration, the District Court here ordered class-wide relief only for discrimination above GS-11. The court had found that discrimination impeded black agents at every turn; blacks faced extra hurdles in DEA’s initial grade assignments, work assignments, supervisory evaluations, imposition of discipline, and promotions. At the higher levels the cumulative effect of these pervasive discriminatory practices became severe, and the increased subjectivity in evaluations gave discrimination more room to work its effects. In such a situation “exact reconstruction of each individual claimant’s work history, as if discrimination had not occurred, is not only imprecise but impractical.” Pettway, supra,
We perceive no error in the District Court’s finding that it would be impossible to reconstruct the employment histories of DEA’s senior black agents. Examination of discrete promotion decisions, as difficult as even that might be, will not suffice. The decisive criteria for promotions decisions — supervisory evaluations, breadth of experience, and disciplinary history, see Part I-A supra — were themselves found to be tainted with illegal discrimination. The court found that discrimination had skewed evaluations of black agents, but the court could have had no way of knowing how much more favorable a particular agent’s
To require individualized hearings in these circumstances would be to deny relief to the bulk of DEA’s black agents despite a finding of pervasive discrimination against them. In effect, DEA would have us preclude relief unless the remedial order is perfectly tailored to award relief only to those injured and only in the exact amount of their injury. Though Section 706(g) generally does not allow for backpay to thosе whom discrimination has not injured, this section should not be read as requiring effective denial of backpay to the large numbers of agents whom DEA’s discrimination has injured in order to account for the risk that a small number of undeserving individuals might receive backpay. Such a result cannot be squared with what the Supreme Court has told us about the nature of a court’s remedial authority under Title VII. “[T]he scope of a district court’s remedial powers under Title VII is determined by the purposes of the Act.” Teamsters, supra,
B. The Allegation of Class-wide Overcompensation
In calculating the backpay pool the District Court used the race coefficient of the first of plaintiffs’ two salary regressions as the measure of average discrimination per agent. The first regression measured discrimination against all black agents, including those hired before 1972. This study may therefore have reflected the continuing effects of some discrimination occurring prior to 1972. See Parts I-B-l, II-B-l-b supra. Since the actionable period in this case commenced on July 15, 1972, use of the first regression might, according to DEA’s argument, amount to compensation for some nonactionable dis
The District Court found in the Liability Determination that “while pre-1972 discrimination may have affected the statistics * * *, post 1972 discrimination largely contributed to those statistics.” Findings 117i,
Although the court properly found that the plaintiffs’ evidence sufficed to support an inference of actionable discrimination, see Part II-B-l-b supra, the court’s reliance on the first regression to determine back-pay is problematic. The court never found that all of that regression’s race coefficient reflected actionable post-1972 discrimination.
It may be that plaintiffs’ first regression does reflect only post-1972 discrimination. DEA’s complete failure to present evidence showing pre-1972 discrimination in the regression certainly supports this view. It may also be that the portion of the disparity that reflects continuing effects of pre1972 discrimination might be actionable on a continuing violation theory. Or it may be that the small amount of continuing effects cannot plausibly be factored out of the study; if so, and if no more precise methods of ascertaining the amount of actionable discrimination are reasonably available to the court, the court would be faced with using either a mildly overcompensatory formula based on the first regression or a significantly undercompensatory formula based on the second regression. Use of the first regression under these circumstances might be permissible.
We cannot, however, resolve these matters on the present appeal. As the Supreme Court stressed in Lehman v. Trout, supra, — U.S. at -,
C. Promotion Goals and Timetables
The District Court ordered that one black be promoted for every two whites to positions above GS-12 at DEA until blacks made up 10 percent of all agents at each grade above GS-12 or until five years after the order was entered. DEA objects to this aspect of the remedy for the same reason that it objects to class-wide back-pay: some individual agents might receive promotions they do not deserve. DEA argues that promotion goals and timetables exceed a court’s remedial power under Title VII unless every person who potentially benefits from the relief has been individually shown to have been discriminatorily denied a specific promotion. According to DEA, Section 706(g) mandates this result. See 42 U.S.C. § 2000-5(g) (1976) (“No order of the court shall require the * * * promotion of an individual as an employee, * * * if such individual was refused * * * advancement * * * for any reason other than discrimination * * *.”). DEA also argues that such goals and timetables violate the equal protection component of the Fifth Amendment to the Constitution.
Though DEA’s claims are not without some superficial appeal, Section 706(g) must not be read as requiring an exact fit between those whom an employer’s discrimination has victimized and those eligible under promotion goals and timetables. The language on which DEA relies was aimed at ensuring that Title VII was not read as giving courts authority to remedy racial imbalance as an evil in itself, i.e., absent any finding that illegal discrimination caused the imbalance. See EEOC v. AT&T,
Nonetheless promotion goals and timetables — even if as admirably crafted as those at issue here — must be used cautiously. Such relief intrudes into the structure of employment relations and may at times upset the legitimate promotion expectations of individuals in the majority group. We must take a careful look at the District Court’s decision to use goals and timetables in this case.
We are persuaded that the District Court’s order that one black be promoted for every two whites to positions above GS-12 was not appropriate. Strict goals and timetables should not be imposed when “alternative, equally effective methods could * * * supplant resort to a quota.” Thompson v. Sawyer, supra,
In determining whether less severe remedies might prove equally effective the court must evaluate the likelihood that the employer will implement the remedy in good faith. See Firefighters Institute for Racial Equality v. City of St. Louis,
IV. Other Issues
A. The Jackson Injunction
During the course of this proceeding the District Court issued a preliminary injunction against the demotion and transfer of plaintiff Carl Jackson. Order of May 5, 1981, JA 113. Special Agent Jackson, the second highest ranking black agent at DEA, had claimed that the demotion and transfer, and other harassment from a few particular white DEA officials, were in retaliation for Jackson’s testimony in this case. It is undisputed that prior to Jackson’s testimony his employment history at DEA was exemplary and that after his testimony he was the focus of significant official criticism from these individuals, culminating in his demotion and transfer.
The District Court found that Jackson had made a sufficient showing of likelihood of success on the merits of his claim of retaliation in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees * * * because he has opposed any practice made an unlawful employment practice by this subchapter * * *.”). The court also found a high likelihood of irreparable harm if the injunctive relief were denied because other black agents, fearful of similar reprisal, would not come forth at the impending relief phase of the proceeding to demand individual relief.
DEA makes no claim that the trial court applied an improper legal standard in granting the Jackson injunction. Rather, DEA makes two factual challenges to the order: (1) the trial court erred in finding that Jackson’s testimony caused the subsequent adverse employment action, and (2) the trial court erred in finding that inhibition of other agents at the relief stage constituted irreparable harm. We review the trial court’s factual findings with deference. Only if we are left with the definite and firm conviction that a mistake has been made will we overturn the trial court’s determination.
Neither of DEA’s arguments convinces us that a mistake has been made. DEA’s first argument turns primarily on the trial court’s evaluation of the credibility of DEA’s witnesses. See brief for appellants at 73-75. We are extremely reluctant to overturn a District Court on a matter of credibility, and we decline to do so here. The District Court, moreover, marshalled extensive evidence to support its finding of causation. See Memorandum Opinion of May 5, 1981 at 3-10, JA 103-111. DEA’s second argument is frivolous. DEA argues that irreparable harm could not have been found because the trial court ordered class-wide relief, thus obviating the need for individual black agents to come forward at the relief stage. This argument grossly misstates the facts; as DEA is well aware, the trial court also ordered individualized hearings for all claims of discrimination below GS-11. Thus the District Court was wholly correct in anticipating harm if black agents were deterred from coming forward at the relief stage.
While we affirm the District Court’s decision to grant preliminary relief to Special Agent Jackson, we note that his claim of illegal retaliation has not been definitively resolved. On remand, we expect the District Court to take appropriate action on this matter.
B. Prejudgment Interest.
Plaintiffs cross-appeal the trial court’s denial of prejudgment interest.
V. Conclusion
This case, like many Title VII class actions, has presented a host of complex legal issues. After careful review, we affirm the District Court’s liability determination in its entirety. We also affirm the District Court’s remedial use of a class-wide back-pay scheme, but vacate the particular calculation of the backpay formula. We vacate the court’s imposition of strict promotion goals and timetables, and the class-wide frontpay approach tied to the goals and timetables. On remand the District Court is to conduct further remedial proceedings consistent with this opinion.
The particular evidentiary and procedural requirements that have evolved in Title VII cases can greatly aid resolution of complex questions. Care must be taken, however, to ensure that such requirements are not applied in inflexible ways that thwart the purposes for which they were adopted. Such requirements as the “minimum objective qualifications” test, the purported need for anecdotal evidence, and the preference for individual remedial hearings must be applied so as to advance Title VII’s goals of ferreting out and remedying employment discrimination. In affirming the District Court’s liability determination we stress that tests for the sufficiency of plaintiffs’ proof should not be applied in a “rigid, mechanistic, or ritualistic” way. Furnco, supra,
Affirmed in part and vacated and remanded in part.
ADDENDUM
On June 12, 1984, while the opinion in the instant case was in the printing stage, the Supreme Court issued its decision in Firelighters Local Union No. 1784 v. Stotts, - U.S -,
Notes
. 42 U.S.C. § 2000e et seq. (1976 & Supp. V 1981).
. Section 703(a) of the Civil Rights Act provides:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) 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.
42 U.S.C. § 2000e-2(a). That sectiоn applies fully to the federal government, id. § 2000e-16.
. We vacate the frontpay remedy only because the trial court specifically linked it to the promotion timetables, and without prejudice to reinstatement of a new frontpay remedy if the trial court finds such a course appropriate on remand.
. The parties have stipulated as to the Civil Service definitions of general experience and
. See Joint Exhibit I, JA 40.
. When the numerical system was first implemented in 1976, point values were as follows: length of experience (20); breadth of experience (40); education and training (10). In 1978 DEA modified the rating system as follows: breadth of experience (45); performance evaluations (45); training (10). Within the breadth of experience and performance evaluation categories are several subcategories. Under breadth of experience are: supervisory experience (8); complex investigation experience (6); internal security experience (7); diverse domestic (6) and foreign (7) experience; and special skills (4). Under performance evaluation are: most recent annual rating (25); supervisor’s comments (15); and awards (5). Findings ¶ 4,
. The T-Ratio figure for a particular measure of race-related disparity corresponds to the number of standard deviations for that figure. D. Baldus & J. Cole, Statistical Proof of Discrimination 297 n. 14 (1980).
. Professors Bergmann and Straszheim both hold Ph.D.’s and teach labor economics at the University of Maryland. Findings ¶ 6,
. Plaintiffs are subject to the statutory limit on the period of actionable discrimination; under Title VII liability may not accrue for a period of more than two years before the date of filing of an administrative complaint with the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5(g). In this case the actionable period began on July 15, 1972. See Memorandum Opinion, February 17, 1982, at 3 n. 2, JA 114, 116 n. 2. Although not formally created until 1973, DEA was at its creation a consolidation of other federal agencies engaged in drug enforcement efforts, and agents serving these agencies became DEA agents.
. The court did, however, refuse to credit most of plaintiffs’ anecdotal accounts of specific instances of discrimination. Findings ¶514,
. DEA sought at the remedial hearing to introduce its own regression analyses. These regressions purportedly showed an absence of race-related disparity at DEA. The District Court rejected this proffered evidence of DEA's nonliability as untimely. See Memorandum Opinion, supra note 9, at 3, JA 116.
. Typically, Title VII litigation proceeds through a more or less well-defined sequence of shifting intermediate burdens of proof. See Texas Dep’t of Community Affairs v. Burdine,
. To make out a prima facie case under McDonnell Douglas Corp. v. Green,
. This proof will seek to show a disparity between the plaintiff class and the majority group, demonstrate that race explains the disparity by eliminating other possible explanations, and make these showings at high levels of statistical significance.
. Such class actions often can be viewed as collapsing the prima facie and pretext stages of a suit involving an individual plaintiff. See McKenzie v. Sawyer,
6. Not every nondiscriminatory explanation will implicate disparate impact analysis. For example, an employer might seek to show that an observed disparity resulted from discrimination prior to the date Title VII applied to the employer. But when the employer’s explanation amounts to an articulation of a specific employment practice, disparate impact analysis should apply.
. Burdine in no way altered this traditional allocation of burdens. The Court stated that it "recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes.”
. The Supreme Court has recognized that retroactive relief for victims of Title VII violations serves the important purpose of removing barriers to equal opportunity because such relief "provides the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate the last vestiges” of discriminatory barriers. Albermarle Paper Co. v. Moody,
. We note further that application of disparate impact analysis when appropriate in a pattern or practice case will not result in disparate treatment analysis swallowing up the whole of disparate impact analysis. Disparate impact will apply in the pattern or practice case only after plaintiffs have made a sufficient initial showing of disparity between groups that appear to be comparably qualified, and after it has been decided that the employer’s explanation rebuts the disparate treatment claim.
. The Supreme Court has recently stated:
"Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs [to make the ultimate determination] * * *." U.S. Postal Service Bd. of Gov. v. Aikens,460 U.S. 711 , 715,103 S.Ct. 1478 , 1482,75 L.Ed.2d 403 (1983). We follow the prescribed analysis in this case.
. Pre-1972 discrimination may also have affected the results obtained in some of appellees' grade-at-entry statistics. However, the trial court found that "[f]or new hires (post 1972) Blacks were 12% less likely than whites to be hired at GS-9, as opposed to GS-7, and this is statistically significant at the .01 level." Findings ¶ 9a,
. The court's 1979 Liability Determination contains no suggestion that the court thought continuing effects were actionable. In fact, the court’s repeated statements that DEA could have rebutted plaintiffs’ statistics by making a showing that the statistics reflected the continuing effects of pre-1972 discrimination dictates the opposite conclusion. In one isolated sentence in the 1981 Remedial Order the court did state its view that continuing effects of pre-1972 discrimination are actionable under a continuing violation theory. Although this is a correct statement of the law of this circuit, see Thompson v. Sawyer,
. Findings ¶7&
. The court indicated that;
Depending on DEA’s response to perceived pre-1972 discrimination, said discrimination might have three possible effects on the [relevant] statistics, namely (1) the showing of post-1972 discrimination could be artifically [sz’c] accentuated because it would include pre-1972 discrimination, (2) the showing could be attenuated by any affirmative action taken by DEA to rectify pre-1972 discrimination, and (3) the showing might actually downplay post-1972 discrimination because any affirmative action by DEA was overresponsive to the pre-1972 discrimination. No evidence was presented by Defendants indicating that one of the three possibilities was more probable than any of the others.
.
. In the words of the District Court:
Plaintiffs have shown gross disparities between the salaries of comparably qualified Black and White agents at DEA. These disparities are evident in the regression analyses involving all agents for the period 1975-1978, and new hires for the period 1976-1978. Because of the significant level of the disparities shown, Plaintiffs have proven a prima facie case of discrimination in salary. * * *
. DEA also argues that plaintiffs’ regressions lack probative worth because the R 2 figures are too low. R2 provides an overall indication of how well the disparity in the dependent variable (salary, in this case) can be explained by all the independent variables. Plaintiffs’ first salary regression had R2 values ranging from .42 to .52. Plaintiffs’ second salary regression had R2 values ranging from .21 to .37. Findings ¶ 7n,
. DEA has urged that we adopt the "greater than two or three standard deviations” test of statistical significance that the Supreme Court purportedly established in Casteneda v. Partida,
. Some courts have suggested that an inference of discrimination might be permissible even if levels of statistical significance fall short of the .05 mark. See Vuyanich v. Republic Nat’l Bank of Dallas, supra note 27,
. The burden of articulation applies to DEA’s rebuttal of plaintiffs' disparate treatment claims. To the extent that plaintiffs’ evidence, and DEA’s rebuttal, implicate disparate impact, DEA of course bears the burden of proving the business necessity of the challenged practices.
. The evidence has not been subjected to the rigors of the adversarial process, and its veracity is therefore far from certain.
. When plaintiffs' experts used an undisputed statistical technique to aggregate across DEA’s cohort groups, a salary disparity adverse to black agents, and significant at the .001 level, was found. See Tr. at 1937 (testimony of Dr. Spradlin); id. at 2001-2003 (testimony of Professor Straszheim); Plaintiffs' Exhibit 53.
. Of course, when a defendant claims that a specific factor was sufficiently objective to permit quantification, the defendant's failure to present alternative statistics incorporating the factor will severely undermine its rebuttal.
. Having found disparate impact in these employment practices, the District Court ordered validity studies “in order to implement effective, nondiscriminatory supervisory evaluation, discipline, and promotion systems[.]”
. Finding most discrimination took place at GS-11 and above, the court did not order class-wide relief for discrimination against black agents at GS-7 or GS-9 during any given back-pay year. See Mem.Op., supra note 9, at 3, JA 116. The court did, however, permit these agents to bring individual claims for relief. Any individual awards at these levels are to be deducted from the class-wide backpay pool distributed to agents at GS-11 and above. See Remedial Order at 6, JA 124.
. McKenzie v. Sawyer,
. DEA also makes an argument that use of the first salary regression overcompensates plaintiffs based on the R 2 values for this study. DEA argues that, because the R2 value was roughly .50, only about half of the race coefficient for the years in question actually represents race-related disparity. This argument reveals a basic misunderstanding of the meaning of R 2 figures. An R 2 of .50 does not mean that only half of the race coefficient is attributable to race. Rather, it means that half of the total salary disparity between black and white agents is attributable to the totality of the factors examined in the regression. See generally Fisher, Multiple Regression in Legal Proceedings, 80 Colum.L.Rev. 702, 720 (1980). In any event, R 2 is far from a wholly reliable measure of a study’s accuracy. See note 27 supra. For these reasons, we hold that DEA's objection based on R 2 values is without force.
. Of course, the court need not have found that all of the discrimination reflected in the regression occurred after 1972 in order to find the regression sufficient to make out a prima facie case of actionable discrimination. See Part IIB-1-b; Valentino v. U.S. Postal Service,
. DEA has amassed an array of quotes from Title VII’s legislative history in support of its contention that promotion goals and timetables are invalid if they benefit any individuals who are not proven victims of discrimination. See reply brief for appellants at 20-22. Many in Congress spoke in 1964, and again in 1972 when Title VII was amended, to assure wavering supporters that Title VII could not be applied to grant preferences for those who were not victims of discrimination. These statements are, however, inapposite to the question before us in this case. Those in Congress who made such statements were not considering the issue whether in affording relief for proven discrimination against a broad class some individual nonvictims might benefit in order to ensure that all actual victims benefitted. Rather, these statements were made with reference to the question whether Title VII could be used as a mandate to correct overall racial imbalance in an employer’s workforce when such an imbalance had not been shown to be the result of discrimination.
. See Thompson v. Sawyer,
Concurrence Opinion
concurring:
I am in full accord with the result reached in the majority opinion and with most of its rationale. I write separately to emphasize certain points concerning the parties’ burdens in a pattern and practice disparate treatment case. Although this
A. Introduction: Cataloguing Title VII Cases
As the majority correctly explains, a plaintiff in a Title VII action can prove liability under two theories: disparate treatment or disparate impact. A disparate treatment claim posits that the employer has intentionally treated the plaintiff less favorably than others because of the plaintiffs race, color, religion, sex, or national origin. International Brotherhood of Teamsters v. United States,
In a disparate impact case, the plaintiff need not establish discriminatory intent; the focus is on the consequences of an employer’s practices, rather than the underlying motive. Griggs v. Duke Power Co.,
The Supreme Court has established different proof sequences in disparate treatment and disparate impact cases that reflect the functional differences between the two theories. In Texas Department of Community Affairs v. Burdine,
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Id. at 252-53,
Discriminatory intent need not be proved in a disparate impact case, and the Court has not deemed it necessary to establish shifting intermediate burdens in such cases. Rather, a plaintiff proceeding on a disparate impact theory must prove that the specific employment practice in ques
B. Pattern and Practice Cases Involving Mixed Claims of Discrimination
The plaintiffs in the instant case challenge the DEA’s employment system in its entirety and also challenge particular components of that system. In doing so, they allege both a pattern and practice disparate treatment claim and several disparate impact claims. This Circuit has not heretofore fully articulated the parties’ respective burdens in a pattern and practice disparate treatment case. Cf. McKenzie v. Sawyer,
In applying the Court’s decisions to a pattern and practice case, it must be recognized that in some respects a pattern and practice case converges with a disparate impact case. Actions predicated on either theory involve attacks on the systemic results of employment practices. While the plaintiffs in a pattern and practice suit will focus on the intentional discrimination that is demonstrated by the operation of the system in its entirety, they also may make claims that particular components in the system have a disparate impact. Moreover, even if the plaintiffs do not concentrate on these components, the employer may deny its discriminatory intent by pointing to a specific, arguably nondiscriminatory, component as the cause of the observed disparity. Hence, either because of the plaintiffs’ allegations or because of the employer’s defense, the focus of a pattern and practice case may shift or broaden from disparate treatment analysis to include the issue of the employer’s liability for specific employment practices that have disparate effects.
As the Supreme Court has unequivocally dictated different approaches depending on whether the focus of a case is intentional discrimination or the effects of specific employment practices, our treatment of pattern and practice actions must account for the permutable nature of these actions. The subsequent discussion delineates the plaintiffs’ and defendant’s respective burdens in a pattern and practice case, and explains that the nature of these burdens will vary somewhat if the plaintiffs’ or defendant’s proof implicates disparate impact analysis.
C. The Plaintiffs’ Prima Facie Case in a Pattern and Practice Suit
To establish a prima facie pattern and practice case “[t]he plaintiffs must, by statistical evidence, individual testimony, or a combination of the two, make a showing adequate to raise the inference that employment decisions were predicated on an illegal criterion.” McKenzie,
At the same time, the plaintiffs are required as part of their prima facie case to “demonstrate to the court’s satisfaction that their statistical comparisons are meaningful.” Trout,
Recognizing that plaintiffs “need not present a perfect statistical analysis at the prima facie case stage,” Trout,
Despite these refinements of the minimum objective qualification “rule,” the plaintiffs’ task in attacking systemic discrimination is not an easy one. It includes important burdens of proof and significant litigation choices. If the plaintiffs proceed on a pattern and practice treatment theory, to establish a prima facie case their proof of a regular pattern of differential treatment must be sufficiently convincing to permit the factfinder to infer a discriminatory motivation. If the plaintiffs believe that the systemic discrimination is in part the result of minimum objective qualifications or other employment practices having an adverse impact on minorities, they may proceed on a disparate impact theory as well. In other words, plaintiffs may proceed on either a disparate treatment theory or a disparate impact theory, or both, because either or both may be implicated in a pattern and practice suit.
D. The Defendant’s Rebuttal in a Pattern and Practice Suit
The “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine,
The defendant’s rebuttal in a pattern and practice case can proceed in a number of ways, but must be designed to meet the proof offered by the plaintiffs. Teamsters,
While these propositions are well established, two points are raised in the majority discussion of the defendant’s rebuttal that warrant elaboration. The first is the question of the defendant’s burden in rebutting the plaintiffs’ prima facie case. While it is clear that the defendant does not have the burden of proof, this does not tell us what is required of the defendant’s rebuttal and when this rebuttal will necessitate a response by the plaintiffs. The second question raised by the majority is whether there are circumstances in which the defendant’s rebuttal to a pattern and practice disparate treatment claim provides a sufficient basis for a court to conclude that disparate impact has been established.
1. The Burden of Defendant’s Rebuttal
In determining the burden that the defendant must satisfy in rebutting the plaintiffs’ prima facie case, we are guided by several Supreme Court decisions rendered over the past decade. The starting point is the Court’s decision in Teamsters, as it also involved a pattern and practice claim. In
Hence, Teamsters indicates that after the plaintiffs present a prima facie pattern and practice case, the defendant’s rebuttal must be sufficient to convince the trier of fact that the plaintiffs have not carried their ultimate burden or the plaintiffs will prevail without further evidence. Absent a clear indication from the Supreme Court that we should depart from this “common allocation of burden in a civil suit” (see Vuyanich, 521 P.Supp. at 663), the approach employed in Teamsters must govern our adjudication of a pattern and practice case.
The Court’s more recent decision in Bur-dine does delineate a somewhat different, three-stage inquiry to govern individual disparate treatment cases. The Court indicated that at the second stage of this inquiry — i.e., the defendant’s rebuttal of the prima facie case — the defendant must produce evidence raising “a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine,
The nature of the defendant’s rebuttal burden in an individual disparate treatment case must, however, be understood as a function of the relatively minimal burden borne by the individual plaintiff in proving a prima facie case. In McDonnell Douglas Corp. v. Green,
Although the McDonnell Douglas test is a useful framework for initial consideration of a discrimination claim, the presumption that results from the test is relatively weak. If the plaintiff’s evidence does no more than satisfy the four prongs of the test, the plaintiff has only eliminated two of many possible nondiscriminatory explanations for the employer’s decision. When the employer responds by clearly articulating a nondiscriminatory. reason for the decision, the factfinder has no basis for inferring that discrimination is a more likely
Burdine established a workable means for the parties’ focus to shift away from the McDonnell Douglas inquiry when that inquiry is not dispositive of the ultimate question of intentional discrimination. In some cases, however, the plaintiff’s initial showing will go beyond that required by McDonnell Douglas. In Burdine the Court recognized this possibility and explicitly stated that in such cases, the plaintiff may not need to come forward with additional evidence in responding to the defendant’s rebuttal:
In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there may be some cases where the plaintiffs initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.
Burdine,
A pattern and practice cаse is analogous to this latter group of cases envisioned in Burdine. The initial proof demanded of plaintiffs in a pattern and practice case typically goes far beyond the minimal showing that is required for an individual to establish a prima facie case under McDonnell Douglas. In order to establish a prima facie pattern and practice case, the plaintiffs must present meaningful statistics or other evidence demonstrating that comparable groups have been consistently treated differently. In cases such as this— where the “plaintiff class [necessarily] loads overwhelming force into its opening shot,” Vuyanich, 521 F.Supp. at 661—Burdine indicates that the defendant’s rebuttal may not require the plaintiffs to present additional evidence at a third stage. This will be so unless the defendant’s proof casts “sufficient doubt on the plaintiff’s proof to cause the trier of fact to conclude that the plaintiff has not proved discrimination by a preponderance of the evidence.” Vuyanich,
In reaching this conclusion, the Vuyanich court correctly observed that the “initial thrust” of the plaintiffs’ proof in a pattern and practice case often “combines the first and third steps of the Burdine model by demonstrating discrimination against protected groups, and pretext, at the same time.” Id. In an individual case, significant questions will remain to be addressed if the McDonnell Douglas presumption “drops from the case.” However, in a pattern and practice case, the parties usually focus on the ultimate issue from the very beginning, and additional evidence may be unnecessary after the defendant’s rebuttal.
In some cases it may be unclear whether the defendant’s rebuttal casts sufficient doubt on the plaintiffs’ evidence; consequently, plaintiffs may choose to respond
Finally, it should be noted that the conclusion we reach today is also dictated by the Supreme Court’s admonition in United States Postal Service Board of Governors v. Aikens,
I have examined the relevant Supreme Court cases at some length because of the importance of the issue being considered. I believe that the views expressed are in full accord with the intended rationale in the majority opinion. I also believe that the cited case law uniformly and unequivocally dictates the standard that we have articulated today.
2. Defenses that Implicate Disparate Impact Analysis
I am in complete agreement with the expressed view in the majority opinion indicating that a court can conclude that an unlawful disparate impact has been established when the following conditions are satisfied:
(1) The preponderance of the evidence— whether introduced by the plaintiffs or the defendant —proves that one or more specific employment practices have a disparate impact;
(2) either the plaintiffs or defendant argue that the practices have a disparate impact, thereby putting the defendant on notice of the need to prove the business necessity of the practices; and
(3) the defendant fails to prove business necessity.
When these conditions are met, the majority correctly explains that “the essential elements of a disparate impact case will have been placed before the trier of fact,” and the case is “ripe for resolution using disparate impact analysis.” Maj. op. at 1270 (footnote omitted). See generally Albemarle Paper Co. v. Moody,
Thus, if a defendant merely cites an allegedly neutral employment practice as a possible explanation for disparaties shown in a pattern and practice treatment suit, plaintiffs’ case may be expanded to include a theory of disparate impact. If plaintiffs can then prove that the cited practice has an unlawful impact, or if defendant effectively concedes the presence of unlawful discriminatory effects, then the burden shifts to the defendant to prove that the cited practice is justified by business necessity. See Albemarle Paper Co.,
In resolving complex employment discrimination cases of the sort here at issue,
Conclusion
I commend the majority opinion for its exhaustive analysis of this case, and for clarifying the law in a manner that benefits plaintiffs and defendants alike. Although I have seen fit to express certain of my views, I am generally in accord with the rationale and holdings of the majority opinion.
. Although we have sometimes stated this rule in terms that go beyond the factual contexts in which it was at issue, these prior pronouncements may not be as all-encompassing as their language suggests. Hazelwood and Teamsters indicate that in cases in which the general population has or can acquire the skills necessary to perform a job, general population comparisons are quite probative. Neither case suggested that the plaintiffs had to consider whether specific qualifications required by an employer were generally satisfied by the comparison group. See De Medina,