In May 2013, the Second Circuit issued a ruling in United States and The Vulcan Society, Inc., et al v. City of New York, et al. This is a long running case which started as a disparate impact claim and became a pattern or practice case centered on the city’s entry-level firefighter exam.
Of note is that this case provides some clear guidance on how employers faced with Title VII lawsuits can rebut a plaintiff’s attempt to establish a prima facie case of pattern or practice. Under the divided ruling, if a plaintiff claims an employer is operating under standard operating procedures of discrimination against a class of people, an employer can respond with whatever they have to show that if they were operating in such a way they did not intend to do so (e.g., affirmative action plans, diversity initiatives, attempts to produce an unbiased testing procedure). This gives the employer a broad opportunity to present in rebuttal any evidence that shows they lacked intent. In their ruling, the court stated that statistics are not required. While the case is not over, this could potentially ease the burden on employers at the summary judgment.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.