“Should individual employment discrimination plaintiffs have the opportunity to use the Teamsters method of proof if they can produce convincing statistical evidence of discrimination, or should they be limited to the weaker McDonnell Douglas framework? Applying the foregoing analysis, individual plaintiffs should be permitted to use the Teamsters framework in appropriate cases, even though the federal appellate courts have generally held to the contrary. The only difference between an individual private discrimination claim involving statistical proof of a disparity and a class action discrimination claim involving statistical evidence is that in a class action the plaintiffs have satisfied the procedural requirements for class certification pursuant to Fed. R. Civ. P. 23. In the individual private case, the individual has evidence of a systemicviolation but is litigating alone or with too few co-plaintiffs to satisfy the numerosity requirement.”

Bent ends the section by saying:

Finally, the evidentiary signal, (prob(Y§X)) as compared to (prob(Y§~X)), offered by a single plaintiff at Phase I can be just as strong as the evidentiary signal offered by class plaintiffs. In fact, there is no reason that an individual’s statistical evidence need be any different at all from what could be offered in a class action. It is possible, for example, that an individual plaintiff in a sex discrimination case could obtain statistical evidence sufficient to support a class action for failure to promote on the basis of sex, but that all of her fellow female employees decline to sue their employer, for reasons personal to them. The Phase I statistical evidence in the individual case would be identical to the Phase I evidence that could have been offered if it were a class action.

If an individual plaintiff can make a strong showing that (prob(Y§X)) is likely much higher than (prob(Y§~X)) using statistical evidence, just as in a class action systemic disparate treatment case, then there is no principled reason why that individual should not obtain the same benefit of a shift in the burden of persuasion, rather than being relegated to the less powerful McDonnell Douglas scheme. Requiring individual plaintiffs to proceed under the McDonnell Douglas framework unjustifiably forces plaintiff to bear the burden of persuasion at all times, despite the strength of the statistical evidentiary signal. As shown by the analysis developed above, there is no policy reason to preclude individual plaintiffs from using the systemic disparate treatment theory.

This is exactly what the finder of facts are trying to do in my case — treat the statistical evidence as irrelevant. This is because it undeniably establishes, on its own, an inference of William Morris’ discriminatory intent, which predates and continues after my employment, and thus supports, shifting both the burden of persuasion and production onto the Defendants.

Source: Jason R. Bent. The Telltale Sign of Discrimination: Probabilities, Information Asymmetries and the Systemic Disparate Treatment Theory, 44 U. Mich. J.L. Reform 797, 853-854. Summary 2011.

 

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