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Larson on Employment Discrimination
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

2-22 Larson on Employment Discrimination 22.syn


Statistics in Proof of Disparate Impact


Lex K. Larson, Esq.

Chapter Summary


In Title VII cases, it is common to rely on statistical data when attempting to show that "neutral" employment criteria have a disparate impact. A variety of statistical tests, including standard deviation analysis, have proved useful. Whether a particular type of statistical comparison is probative will depend on, among other things, the type of neutral factor that is being challenged. This chapter, from Larson on Employment Discrimination (Matthew Bender), discusses the use of statistical comparisons in disparate impact cases. It discusses the proper use of workforce statistics, the effect of sample size and the completeness of the data, the relevant time frame, and how great the disparity must be to establish disparate impact.

The chapter first evaluates what constitute probative statistical comparisons, and whether workforce statistics alone can form the basis of a prima facie case. A disproportion between the racial composition of the employer's work force and the community labor pool alone does not provide enough for a prima facie case: the focus remains on the impact of a specific selection device. However, the chapter points to considerable authority for the use of work force statistics as corroborative of test statistics showing disparate impact.

The chapter next reviews cases in which small sample size played a role. While a small sample does not preclude a finding of statistical significance, particularly when the disparity in question is very large, the chapter illustrates through cases that sample size is one factor in determining whether a disparity is statistically significant. In addition, the chapter discusses other limits on the use of statistical evidence, which include the completeness of the data, whether the data relates to the proper geographical area, and whether the data utilizes the proper time frame.

Finally, the chapter analyzes how great the disparity must be in order to trigger the rule established in Griggs v. Duke Power Co. that a neutral requirement having a disparate impact on a protected group may violate Title VII. The courts have tended to reject the EEOC "four-fifths" quantitative standard in favor of more sophisticated statistical tests, and the chapter reviews a sampling of specific testing, education requirement, arrest and conviction, wage garnishment, and height and agility cases as to showings of disparity.

Larson on Employment Discrimination (Matthew Bender) provides complete analysis of all major federal anti-discrimination statutes, which bar employment discrimination based on race, color, sex, national origin, religion, age, and disability. Larson's also includes extensive appendices containing the current version of all major federal anti-discrimination statutes (including Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act). In addition, the treatise contains practice forms covering all phases of discrimination litigation, including EEOC proceedings, settlement, summary disposition, and jury instructions.


Title VII,Title VII of the Civil Rights Act,Civil Rights Act,employment discrimination,disparate impact,statistical tests for disparate impact,standard deviation,EEOC,four-fifths quantitative standard,disparity


For an overview of Title VII, see Chapter 3, Title VII Summarized.

For comparison to the standards of proof for intentional discrimination in disparate treatment cases, see Chapter 8, Proving Disparate Treatment.

For further discussion of confining hiring statistics to a relevant time frame, and discussion of statistical vs. legal significance, see Chapter 9, Use of Statistics in Disparate Treatment Litigation.

For further discussion of disparate impact cases, see Part V, Title VII: Disparate Impact, Chapter 20 and Chapters 22-31, in particular Chapter 22 for discussion of statistics in disparate impact litigation.


For a definitive and complete guide to labor and employment law written by authorities in the field of labor and employment, such as Lex Larson, Peter Lareau, and Jonathan Mook, see Labor and Employment Law (Matthew Bender).

For review of employment policies and practices unique to corporate counsel, model procedures and policies, and coverage of topics including discrimination, hiring and firing issues, investigations, EEOC mediation, and record retention see Corporate Counsel Solutions: Employment Policies and Practices (Matthew Bender).

For a comprehensive, up-to-date treatise analyzing every aspect of civil rights and including tried-and-true practice forms, for matters relating to the Americans with Disabilities Act, employment discrimination, age discrimination, privacy issues, property rights, fair housing, prisoners' rights, and voting rights,see Civil Rights Actions (Matthew Bender).

For comprehensive coverage of the most explosive issues in labor law today, including an "Employee Relations Guide" detailing preventative practices, and a practice appendix with forms and checklists, see Unjust Dismissal (Matthew Bender).
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