two methods of proving employment discrimination.
A plaintiff can prove discrimination in either of two ways: by demonstrating an individual instance of discrimination directed at the plaintiff, or by showing a pattern of discrimination by the defendant directed generally against a particular group (disparate treatment and disparate impact). Since a single incident of discrimination can be subtle and the evidence required to prove it primarily inferential, plaintiffs generally choose to show a pattern of discrimination. Employment practices that appear neutral in their treatment of individuals, may impact more severely on protected groups and may not be justified by business necessity. The foundation for such a disparate impact case is often a showing that minorities or women are concentrated in certain positions, or practically absent in other positions. In order to establish a prima facie case, plaintiff may use statistical proof alone. The comparison must be made between the racial composition of the persons holding at-issue positions and the populations of qualified persons in the relevant labor market.
Once a statistical disparity is shown, the plaintiff has the burden of demonstrating that the disparity is the result of one or more of the alleged, discriminatory employment practices of the defendant. If the employer successfully establishes a business necessity defense, the plaintiff can still prevail by demonstrating the justification is inadequate or by identifying alternatives to the employer’s practices that meet the employer’s legitimate objectives, but which do not have the undesirable disparate impact.
Source: Larry Varn. Pattern Discovery: Employment Discrimination. 2013.
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