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ARTICLE · 21 JANUARY 2021

Strength In Numbers? Not Necessarily, Says Second Circuit

Seyfarth Shaw LLP
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Seyfarth Synopsis: A recent Second Circuit decision casts doubt on the usefulness of national statistics to support a claim of hiring disparities

United StatesEmployment and HR
Craig Simonsen
Craig Simonsen
Kaveh Dabashi
Kaveh Dabashi
Robert Whitman
Robert Whitman
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Seyfarth Synopsis: A recent Second Circuit decision casts doubt on the usefulness of national statistics to support a claim of hiring disparities at the pleading stage of litigation. Unless the national population mirrors the pool of qualified job applicants, the Court held that national statistics cannot help a plaintiff plead that an employer's hiring policy has a disparate impact on a protected class.

"Facts are stubborn things, but statistics are pliable." With this Mark Twain quote, the Second Circuit opened its recent opinion affirming dismissal of a Title VII disparate impact claim. The opinion explores the extent to which national statistics regarding the arrest and incarceration rates of Black Americans versus Caucasian Americans can support a disparate impact claim.

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