The pattern or practice cause of action is the most potent, but least understood, of the causes of action recognized by Title VII. The massive sex discrimination case filed against Wal-Mart has renewed scrutiny on the nature of the pattern or practice claim, and this essay seeks to explain under what circumstances statistics can prove intentional discrimination. This essay first explores the history of the pattern or practice claim, noting that the primary case law is now three decades old and was developed around issues of overt race discrimination. Claims of gender discrimination are more complicated because the regression analyses that are at the core of the case do not create as strong an inference of discrimination as occurs in the context of race discrimination. The essay, however, rejects the notion that the pattern or practice claim is merely an aggregation of individual claims, and instead suggests that the statistics prove a more subtle form of discrimination that would not be evident if one focused solely on individual claims. The paper also critiques the presentation of the sex discrimination claim in the Wal-Mart litigation for its generic quality, and suggests that plaintiffs must provide a narrative that explains the statistical story with a focus on the particular employer.
GW Paper Series
GWU Legal Studies Research Paper No. 548; GWU Law School Public Law Research Paper No. 548
Michael Selmi, Theorizing Systemic Disparate Treatment Law, 32 Berkeley J. Emp. & Lab. L. 477 (2011).