©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 43 The Court similarly dismissed the Defendants’ arguments relative to the adequacy requirement. Specifically, the Defendants claimed that the scope of certain merits issues relative to the charge of discrimination would be addressed at the summary judgment stage, but such issues had clear implications for class certification. The Court held that since such an argument was—as Defendants admitted—suited for the summary judgment stage, the Court refused to consider the argument and held the Plaintiffs are adequate class representatives. Finally, the Court considered whether there were common questions of law or fact that predominated over individual questions. Defendants argued that an individualized analysis of each applicant would be necessary because there are more steps involved in the hiring process than just the standardized tests. However, the Court held that, in the context of disparate impact cases, Title VII guarantees protected individuals the opportunity to compete equally based on hiring criteria, and losing an opportunity to compete equally (here, via the examinations) were actionable injuries. Accordingly, the Court granted the Plaintiffs’ motion for class certification. The EEOC has historically argued that statistics play a critical role in hiring cases. In EEOC v. Performance Food Group, Inc.,123 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.124 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 license.125 The employer argued that the EEOC’s expert analysis had improperly aggregated selection rates across positions, operating companies, and years, and had failed to properly control for differences in experience among applicants. The court held that the EEOC “clearly has made out a prima facie case with respect to its pattern or practice claim,” finding that “[t]he EEOC’s statistical analysis shows statistically significant disparities in the hiring of male and female applicants, adverse to female applicants, across operative positions and OpCos, even when controlling for experience. It has presented other statistical evidence showing that some OpCos hired no female applicants in certain positions for the entire period 2004–2009 or 2009–2013.” 126 The court stopped short of finding in favor of the EEOC with respect to liability under the two-part Teamsters framework applied to pattern or practice cases. Although the EEOC met its burden as to its prima facie case, the court held there were numerous genuine disputes of material fact regarding the statistical analysis and anecdotal evidence that precluded summary judgment.127 Other cases of discrimination are arguably more clear cut. Where there is direct evidence of discriminatory intent, the path for the EEOC is much easier, and the path for the employer is much more difficult. For example, in EEOC v. NDI Office Furniture LLC,128 the EEOC alleged that the employer did not hire women for warehouse positions because they would be a “distraction” to male employees and retaliated against the charging party and her son due to her complaints about the allegedly discriminatory treatment.129 Among other things, the court pointed to statements by the warehouse manager and more senior managers that the employer does not hire women for warehouse positions.130 The court held that these statements are “’prime examples’ of direct evidence of discrimination without the need to infer discriminatory intent.” 131 With respect to the pattern or practice allegations, the court held that “the content of these statements suggests a broad discriminatory policy toward all women,” and concluded: “the existence of that evidence simply means that a 123 EEOC v. Performance Food Group, Inc., No. 13-CV-1712, 2020 WL 1287957 (D. Md. Mar. 18, 2020). 124 Id. at *1-2. 125 Id. at *3. 126 Id. at *7. The court also faulted the employer’s recruiting efforts, finding that it had identified the target demographic for its radio ads as “male,” and that it had intentionally sought males for warehouse positions and females for receptionist positions. Id. 127 Id. at *8. Under that framework, the EEOC bears the initial burden of making out a prima facie case of discrimination by establishing by a preponderance of the evidence that sex discrimination was the company’s standard operating procedure. 128 EEOC v. NDI Office Furniture LLC, No. 2:18-CV-01592, 2021 WL 2635356 (N.D. Ala. June 25, 2021). 129 Id. at *5-6. 130 Id. at *9. 131 Id.