AACG Published on Law360: How High Court’s Old, Bad Stats Analysis Can Miss Discrimination

AACG National Managing Director Dr. Daniel S. Levy’s article has been published in Law360.  On Sept. 13, the U.S. Equal Employment Opportunity Commission continued to expand its access to employer data for statistical analysis through a memorandum of understanding with the Wage and Hour Division of the U.S. Department of Labor, which describes the data-sharing protocols between the two agencies.^[1]  This follows a 2022 Office of Federal Contractor Compliance Programs directive laying out eight statistical tests likely to be acceptable, potentially among others, in OFCCP pay discrimination reviews.^[2] This continued push toward more frequent and powerful statistical analysis in discrimination regulation and litigation brings us back to the fundamental question of what statistical evidence “indicates that the discrepancy is significant,” as the U.S. Supreme Court put it in Castaneda v. Partida in 1977.^[3]

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