EEOC-Initiated Litigation - 2022 Edition

16 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP be justified by business necessity. 91 The court held that the EEOC had easily met the requirements of its prima facie case, i.e., to show: “(1) an identifiable, facially-neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two.” 92 The court noted that the first two elements were clear: “the CRT test as a means of selecting employees is a facially-neutral personnel practice,” and “[employer’s] own data reveals that the test had a disparate effect on female job applicants in the form of low passage rates.” 93 With respect to causation, the court noted that “courts consider tests of statistical significance to determine whether a disparity can reasonably be attributed to chance.” 94 Based on the EEOC’s statistical evidence of causation, the court concluded that the EEOC had met its prima facie case. The burden then shifted to the employer to show that its test was job related and consistent with business necessity . 95 The employer relied on the fact that its cutoff scores for the CRT test were based on the professional estimates of one of CRT’s founders. But that founder had passed away years ago and a number of CRT’s relevant records had been destroyed in a flood . 96 Although the employer’s cutoff scores were consistent with CRT’s literature, the court found that CRT representatives “could not offer further specifics about the data sets or peer-reviewed literature,“ and although the “calculation” or “formula” CRT used was developed by the founder and programmed into the server, “no one at CRT today knows what it is.” 97 Accordingly, the employer’s proof of job-relatedness was based on hearsay that would be inadmissible at trial. 98 The EEOC has historically argued that statistics play a critical role in hiring cases. In EEOC v. Performance Food Group, Inc. , 99 the EEOC alleged that the employer had engaged in a pattern or practice of discrimination against women for hiring into its “operative positions,” i.e. , workers who operate machine or processing equipment or perform other factory-type duties of an intermediate skill level. 100 The EEOC presented statistical evidence that showed a statistically significant disparity in offer rates between male and female applicants for the five operative positions at issue during the relevant time periods, which had controlled for experience, online application, and, for drivers, whether the applicant had a Class A 91 Id . 92 Id . 93 Id . 94 Id . However, the employer pointed out problems with how the EEOC’s expert had determined gender for use in her statistical analysis by running applicant’s first name through a website database called genderchecker.com to identify the gender(s) typically associated with that name. Id . at *5. However, the Court held that this issue would have impacted less than half of one percent of the sample and therefore the EEOC’s expert’s “handling of missing or inconsistent gender data does not materially undermine the strength or reliability of her opinions.” Id . 95 The EEOC argued that the employer was required to produce a validity study, as required by the EEOC’s own Uniform Guidelines on Employee Selection Procedures. Id . at *6. The Court never addressed that question, however, as it found that the employer had failed to submit any evidence that the CRT test was relevant to the jobs applied for. Id . The court acknowledged that “some level of physical strength is required to be a driver at [employer],” noting that “[d]rivers have to get into and out of the cab, climb on and off the back of the truck, inspect the truck, and crank up and down the trailer's stabilizing dolly,” and depending on the truck, “secure their cargo using heavy tarps and straps, and . . . assemble a decking and ramping system.” Id . But that alone was not enough. To meet its burden, the employer had to show that the CRT test-generated BIS scores and the employer’s cutoff for determining pass or fail had a “manifest relationship to the employment in question.” Id . at *6-7 (quoting Hawkins v. Anheuser-Busch, Inc. , 697 F.2d 810, 815 (8th Cir. 1983)). The Court noted that “[a] cutoff score is permissible if it is ‘based on a professional estimate of the requisite ability levels, or, at the very least by analyzing the test results to locate a logical ‘break-point ’in the distribution of scores.’” Id . (quoting Bew v. City of Chicago , 252 F.3d 891, 895 (7th Cir. 2001)). 96 Id . at *7. 97 Id . 98 The Court concluded that “even if the testimony of the CRT corporate designee about his conversations with [founder] concerning the development of the BIS formula and the relationship of BIS scores to generalized job exertional categories were somehow admissible, [employer] cannot justify its use of cutoff scores that cause a disparate impact on women by reference to unspecified data sets or literature, or computations processed through an unknown algorithm.” Id . at *8. With respect to business necessity, the court found that “there is no evidence from which a reasonable factfinder could conclude that the use of the CRT test was “essential” to resolving Koch's “demonstrable” problem with workplace injury and workers compensation claims – or that any such problem existed in the first place.” Id . at *9. 99 EEOC v. Performance Food Group, Inc. , No. 13-CV-1712, 2020 WL 1287957 (D. Md. Mar. 18, 2020). 100 Id. at *1-2.