Proving Discrimination in Employment: Statistical Evidence

Many trials involving cases alleging discrimination feature testimony from experts who interpret statistical data reflecting demographics, pools of qualified applicants, and whatever anyone can interpret based on numbers. Experts for plaintiffs and defendants often interpret the same data very differently.

Why the importance of statistical evidence? As previously noted, outcomes say it all. A problem encountered by many who allege discrimination is framing an argument based on outcomes alone. The EEOC is often the proponent in cases alleging discriminatory recruitment practices because those impacted by them are unaware that something was amiss. 

It is axiomatic that output is a function of input. In other words, a lack of diversity is likely the product of a recruiting effort that produced that outcome. There can be exceptions based on demographics and qualified applicants for a particular position in a relevant labor market. Those situations do not apply to many geographic areas or most jobs that become available.

As already noted, 87.7 % of RNs are women. Women comprise 3.5% of licensed plumbers. A lack of applications from males for RN positions or women for jobs as plumbers would not be, without more, evidence of discriminatory recruiting practices. Those situations are not germane to jobs that call for the general skills many possess. If applicant pools lack diversity, employers should consider adjusting the geographic scope of their recruiting effort, based on what is reasonable or attainable.