Washington Law Review Volume 68 Number 3 7-1-1993 Statistical Proof of Discrimination: Beyond "Damned Lies" Kingsley R. Browne Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the Labor and Employment Law Commons Recommended Citation Kingsley R. Browne, Statistical Proof of Discrimination: Beyond "Damned Lies", 68 Wash. L. Rev. 477 (1993). Available at: https://digitalcommons.law.uw.edu/wlr/vol68/iss3/2 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact
[email protected]. Copyright © 1993 by Washington Law Review Association STATISTICAL PROOF OF DISCRIMINATION: BEYOND "DAMNED LIES" Kingsley R. Browne* Abstract Evidence that an employer's work force contains fewer minorities or women than would be expected if selection were random with respect to race and sex has been taken as powerful-and often sufficient-evidence of systematic intentional discrimina- tion. In relying on this kind of statistical evidence, courts have made two fundamental errors. The first error is assuming that statistical analysis can reveal the probability that observed work-force disparities were produced by chance. This error leads courts to exclude chance as a cause when such a conclusion is unwarranted. The second error is assuming that, except for random deviations, the work force of a nondiscriminating employer would mirror the racial and sexual composition of the relevant labor force. This assumption has led courts inappropriately to shift the burden of proof to employers in pattern-or-practice cases once a statistical disparity is shown.