Statistics are sometimes used in EEO litigation as probative evidence of discrimination or the lack thereof. The U.S. Supreme Court has noted that “[s]tatistics showing [a protected class] imbalance are probative... because such imbalance is often a telltale sign of discrimination.” International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 340 n.20 (1977) (citations and internal quotations omitted). Whether statistics are useful will depend on the particular facts and circumstances. Id. at 340. Further, statistics may be rebutted. Id. Generally, statistical evidence that fails to account for nondiscriminatory explanations is not permissible. See e.g., Smith v. Xerox Corp., 196 F.3d 358, 371 (2d Cir. 1999) (granting the employer summary judgment where the plaintiff’s statistical evidence failed to account for nondiscriminatory explanations; court noted that the evidence “only showed that chance was most likely not responsible for the perceived” differential treatment).
Although statistics are most frequently present in class or representativeactions, they are sometimes used in individual cases, as well.
American Bar Association // Section of Labor and Employment Law Equal Employment Opportunity Committee //EEO Law Basics// Spring 2006
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