By Rebecca Bjork and Gerald L. Maatman, Jr.

Employers who face Title VII discrimination lawsuits in the Second Circuit now have some pretty explicit guidance on how to rebut a plaintiff’s attempt to state a prima facie case of pattern or practice employment discrimination at the summary judgment stage. That blueprint was issued by the Second Circuit yesterday in United States and The Vulcan Society, Inc., et al v. City of New York, et al., No. 11-5113 (2d Cir. May 15, 2013). The de-emphasis on the probative power of statistical evidence in this Title VII pattern or practice case is the most newsworthy thing about it. 

The Second Circuit’s ruling teaches that if plaintiffs say you have operated under a “standard operating procedure” of discrimination against an entire class of people, an employer may respond with whatever evidence you have to show that if you did, you did not intend to do so.  Or, as the majority of this divided panel of the Second Circuit put it in one of the two opinions it issued, which you can read here, “[a]n employer facing that serious accusation [of intentional discrimination] must have a broad opportunity to present in rebuttal any relevant evidence that shows that it lacked such an intent.” United States and The Vulcan Society, Inc., et al v. City of New York, et al., slip op. at 28. 

In vacating a summary judgment ruling against New York City, the Second Circuit ruled that the city was basically entitled to present any kind of proof it wanted in an effort to rebut the prima facie claim of the Vulcan Society, the group of minority firefighter intervenors in this long-running legal battle, that it intentionally sought to not hire black and Hispanic firefighters. The Justice Department’s complaint focused particularly on the disparate impact of written examinations that statistical analyses show favor Caucasian test-takers and did not state a claim for disparate treatment discrimination, which requires proof of intent. Our prior post of the litigation is here.

The district court had granted summary judgment for the intervenors on their disparate treatment claim. The majority of the Second Circuit faulted the district court for requiring that the City present either its own statistical evidence — e.g.,to demonstrate that its hiring patterns should not raise an inference of unlawful discrimination — or take on the plaintiffs’ statistics. 

The Second Circuit clarified that this focus on statistics is not required. An employer can meet its burden under the shifting framework required by Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977), “by presenting a direct attack on the statistics relied upon to constitute a prima facie case. A defendant might endeavor to show that the plaintiff’s statistics are inaccurate, for example, infected with arithmetic errors, or lacking in statistical significance, for example, based on too small a sample.” Id. at 24-25. But — and this is what the ruling makes clear, and which potentially eases the burden on employers at the summary judgment stage  —  the employer can rebut the prima facie case “by accepting a plaintiff’s statistics and producing non-statistical evidence to show that it lacked such an intent [to discriminate against a class].” Id. at 25. Such evidence might take the form of affirmative action plans, diversity initiatives, attempts to produce an unbiased testing procedure, and the like. Id. at 26-27. There are other reasons to read these lengthy opinions — including the dissenter’s view that the majority misread Teamsters and imposed a less rigorous burden on the defense to challenge the accuracy or significance of a plaintiff’s statistics at the burden-shifting stage of a pattern or practice case. But the bottom line is that the Second Circuit’s decisions give employers more grounds in which to fight disparate pattern or practice claims.