The case is EEOC v. Bass Pro Outdoor World (BPOW) decided on March 18, 2013 by District Court Judge Keith B. Ellison of the District of Texas, Houston Division [2013 U.S. Dist. LEXIS 36711]. As far as pattern or practice cases go, this one is not unusual. Rather, my interest in it stems from the distinction made by Judge Ellison between stock and flow data. I've written on the stock versus flow statistics in several Alerts, and for those already familiar with this distinction, please indulge me as I explain to others.

Stock statistics generally form the basis for pattern or practice cases, and are of two types: (1) comparisons between two different workforce stock statistics, as in long distance versus short distance bus drivers in Teamsters v. US (2007) [431 U.S. 324], and (2) composition in the workforce compared to composition in the labor pool as in percentage of blacks in the school district versus percentage of qualified and available backs in Hazelwood School District v. United States (2007) [433 U.S. 299]. Flow statistics, on the other hand, generally form the basis for adverse impact, and are also of two types: (1) selection rate differences between two or more classes of actual applicants, as with cognitive test scores for blacks versus whites in Griggs v. Duke Power (1971) [401 U.S. 424], and (2) selection rate differences for chilled applicants who do not meet a stated requirement, as in the high school diploma in Griggs and height and weight requirements in Dothard v. Rawlinson (19770 [433 U.S. 331].

My interest in this distinction was originally piqued by the ruling in Wards Cove v. Atonio (1989) [490 U.S. 642] in which stock statistics were used as a basis for a controversial adverse impact ruling (later overturned in the Civil Rights Act of 1991). The issue in Wards Cove was the same as in Teamsters (i.e., minorities congregated into lower paying jobs and non-minorities congregated into higher paying jobs). This brings us to the present case.

As I noted above, the facts of the case are not that remarkable given the run of more well known cases on “systemic discrimination” (code phrase for pattern or practice of discrimination). The EEOC alleged that there was a hiring preference for whites via a company-wide “profile” that resulted in statistically significant differences favoring whites over blacks in 24 out of 56 stores nationwide, and whites over Hispanics in 17 stores when comparing percentages at the stores versus percentages available in the various populations. BPOW argued that these data should be thrown out in favor of applicant flow data within each of the suspect stores. Forgive the length of the following quote, but here’s what Judge Ellison said to that:

Defendants argue here that the statistical evidence should be disregarded because it is not applicant flow data. If provided, flow data would measure the percentage of all applicants actually hired to establish the expected outcome. For example, if 1000 people applied and 100 were applied, then the overall hiring rate would be 10%. With neutral hiring, the expected hiring rates for all classes would be 10%. Applicant flow can sometimes be a more accurate measure of an employer's hiring practices than general population comparisons when, for example, a greater percentage of qualified Blacks apply for work than qualified whites. …. However, applicant data "is frequently unavailable, and, when available, it is often distorted by inadequate or excessive recruiting efforts, improper deterrence of applicants, unqualified applicants, multiple applications by the same applicant, or lack of specificity or improper groupings …… Furthermore, while applicant data might be relevant, "(t)he absence of such evidence, however, will not prevent plaintiffs from recovering. ….Taking Plaintiff's facts as true, most positions at BPOW require no formal training. Thus, the percentage of minorities in the county can be compared to the percentage within the relevant store to provide reliable statistical data regarding Defendants' hiring practices, at least at the 12(b)(6) stage.

There is more, but key is that this is the first Title VII case I can remember (help me out if I’m wrong) where a judge at least came close to saying stock statistics are sufficient for pattern or practice cases and applicant flow data apply more so to adverse impact cases. Of course, those of you that are federal contractors know that this distinction doesn’t apply to contemporary OFCCP enforcement, where analyses of applicant flow data are very often used in pattern or practice allegations.

by Art Gutman Ph.D., Professor, Florida Institute of Technology

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