Grant v. Metro was decided on August 26, 2011 by a divided three-judge panel of the 6th Circuit Court [2011 U.S. App. LEXIS 18054]. The case was recently summarized by Rich Tonowski of the EEOC. I’ve been waiting for this type of case since the Civil Rights Act of 1991 (CRA-91) was enacted. I have long maintained that Wards Cove v. Antonio (1989) should have been a pattern or practice case, not an adverse impact case (e.g., Gutman, 2005; Gutman, Koppes & Vodanovich, 2010 Ch.2). What the 5-4 Supreme Court ruling did in Wards Cove was apply pattern or practice rules to adverse impact, and this, in my opinion, was the main fuel for CRA-91. I’ve been waiting for a case with facts analogous to Wards Cove, and Grant v. Metro fits the bill. It is a class action suit alleging both pattern or practice and adverse impact based on stock statistics. This is a complicated matter. I will cover the basics of Grant v. Metro below, and discuss in a sequel the relationship of this case to Wards Cove and CRA-91.
The plaintiffs claimed that Metro used a racially discriminatory “preselection” procedure that included tailored job qualifications, selective interviewing, and subjective decision-making. As noted by Tonowski, there was no attempt to isolate (or disaggregate) these practices so as to link them with specific outcomes. The plaintiffs charged that the preselection procedure hurt black employees with respect to post-hiring opportunities, most notably promotion, but also with job assignments, pay, accommodations, discipline, and other terms and conditions of their employment. The plaintiffs advanced both pattern or practice and adverse impact theories of liability.
At the district court level, Judge William J. Haynes, Jr. granted class certification for "all former, current, and future African-American employees of … Metro … from the period January 1, 2000 to the present.” However, a jury ruled for Metro on the pattern or practice charge and Judge Haynes reserved judgment on adverse impact (Grant v. Metro (2010) [727 F.Supp 2nd 677]). The plaintiffs appealed on pattern or practice, requesting a new trial. Judge Haynes agreed, and his motion was upheld by a three-judge panel of the 6th Circuit (See In re Metro (2010)[ 606 F.3d 855]). A new trial on pattern or practice therefore awaits. Of primary interest here is that the 6th Circuit also ordered Judge Haynes to rule on adverse impact, and his ruling was that the plaintiffs presented sufficient prima facie evidence of adverse impact, and the plaintiffs were awarded back pay (to be determined by a special master) and immediate injunctive relief prohibiting Metro from conducting oral interviews for MWS promotions or imposing an interview requirement for lateral transfers. The August 26th ruling by the 6th Circuit addressed Metro’s appeal of Judge Haynes adverse impact ruling. As noted above, it was a split ruling in which two judges favored Metro and one judge dissented and favored the plaintiffs. Here’s the key --- both the majority ruling and the dissent make sense, but for different reasons.
The majority (Judges Batchelder & Sutton) focused on the first two prongs in CRA-91 for making an adverse impact prima facie case: (1) identifying “specific employment practices … responsible for any observed statistical disparities” and (2) proof that these practices cause adverse impact. Prong 1 has an exception such that if the decisonmaking process cannot be disaggregated for statistical analysis, then the entire process may be analyzed as a single employment practice. Judge Batchelder, who wrote the majority opinion, ruled that the plaintiffs “never attempted to demonstrate that the elements of that process are incapable of separation for analysis.” Explaining Further, Judge Batchelder ruled:
The district court appears to have assumed that merely challenging the promotions process as a whole is sufficient to take advantage of the statutory exception, but that is simply not the law. … [CRA-91] clearly requires plaintiffs to identify and isolate specific employment practices … A plaintiff may challenge the process as a whole only if he first demonstrates that its elements are incapable of separation. … The district court erred by allowing Plaintiffs to reap the advantages of the statutory exception without first meeting its requirements.
For Prong 2, the plaintiff’s presented stock statistical comparisons showing that blacks were disproportionately represented in lower paying jobs. Or in Batchelder’s words, the plaintiffs’ statistical expert:
[F]ocused specifically on the representation of "blacks in higher level positions compared to the overall black to white ratio at MWS." He did not look at actual promotion rates, nor did he compare the ratios of black and white employees eligible for promotions with those who actually received promotions. He explained that, in light of MWS's alleged practice of altering job qualifications and criteria, it was impossible to determine who was actually eligible for promotions.
In short, the majority ruling reduces the requirement to show actual applicant flow disparities (i.e., significant differences in selection rates) in order to prove causation.
The dissenting Judge (Clay) made three major points. First, he disagreed that the plaintiffs failed to identify specific employment practices. Second, he pointed to several pieces of anecdotal evidence of discrimination. For example, he cited the following example:
In one instance, Metro eliminated a bachelor's degree requirement for a director position after a qualified black employee applied, and awarded the position to a white applicant without a degree, even though the previous director had both bachelor's and master's degrees.
Several such probative examples were cited. However, third, and most important for present purposes, Judge Clay opined that the statistical evidence provided by the plaintiffs was sufficient for a prima facie case of adverse impact because it showed that “the rate of promotions of black employees, across nearly every job category, was three to four standard deviations lower than would be expected in the absence of discrimination.”
OK … so why is this important. Mainly, both Batchelder and Clay raise important issues. However, Batchelder’s requirement for applicant flow disparities is, in my opinion, the correct one for a prima facie case of adverse impact, whereas the anecdotal evidence of discriminatory decisionmaking coupled with disparities between minority and non-minority employees in different job categories is the correct requirement for a prima facie case of classwide disparate treatment. Thus, I think Judge Batchelder’s ruling was correct and Judge Clay’s opinion should be reserved to the new trial on the pattern or practice charges. I will explain more in the sequel.
Gutman, A. (2005). Adverse Impact: Judicial, Regulatory, and Statutory Authority. In F.J. Landy (Ed.) Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives. San Francisco, CA: Jossey Bass, pp. 20-46.
Gutman, A., Koppes, L.L. & Vadonovich, S.J. (2010). EEO Law and Personal Practices (3rd Edition). New York: Routledge, Taylor & Francis Group.
by Art Gutman Ph.D., Professor, Florida Institute of Technology