On August 17, 2011, Judge Loretta Preska in the U.S. District Court of the Southern District of New York issued a decision putting a resounding end to nearly four years of litigation in EEOC v. Bloomberg L.P., No. 07-CV-8383 (S.D.N.Y. Aug. 17, 2011). In 2007, the EEOC accused Bloomberg of violating Title VII by engaging in a pattern or practice of discrimination against pregnant employees or those who recently returned from maternity leave. Bloomberg had 603 employees who were pregnant or took maternity leave between 2002 and 2009 – 78 of whom the EEOC claimed were victims of discrimination. In granting the employer’s motion for summary judgment, the Court held that it “cannot say that the EEOC has proffered evidence from which a fact-finder could conclude that Bloomberg engaged in a . . . practice of decreasing the pay, responsibility, or other terms and conditions of employment” of its alleged victims. Id. at 2. In so doing, the Court took the EEOC to task on the very underpinnings of its case theory, and issued a stunning rebuke to the Commission in one of its highest-profile cases.
The EEOC Had No Statistical Support, But Bloomberg Did
First, the Court emphasized that the EEOC did not have the numbers to back up its claims of a widespread pattern of disenfranchising Bloomberg’s pregnant or recently pregnant employees. Despite the EEOC’s own compliance manual’s instruction that statistical evidence is “extremely important” in a pattern or practice claim, the EEOC argued that statistical evidence was not legally required and therefore should not hurt its case. The Court reasoned that a lack of statistics may not be fatal in itself, but that in its absence was “severely damaging” and required the EEOC to provide significant anecdotal evidence (it could not, as discussed below). Id. at 25.
On the other hand, Bloomberg was able to present evidence that it did not discriminate against pregnant employees in either compensation or job responsibilities. In fact, Bloomberg’s statistical experts showed that the EEOC’s class members received greater compensation bumps than employees who took leaves for reasons other than pregnancy. Id. at 10.The EEOC could not counter that evidence. This one-two punch knocked out the EEOC’s assertion that there was a pattern or practice of discrimination.
The EEOC Had Only Weak, Disconnected, Or Outright Inadmissible Anecdotal Evidence
Without the numbers to back up the EEOC’s claims, the Court analyzed whether the EEOC presented compelling anecdotal evidence to suggest this case should go to the jury someday. The Court concluded that the EEOC failed to deliver. The Court held that the EEOC’s anecdotal evidence came from only a fraction of the 78 women it claimed were victims, and even that evidence was at best a mixed bag and “insufficient to demonstrate a pattern or practice.” Id. at 13. The Court declined to identify a threshold percentage of a class that the EEOC needed to present in terms of anecdotal evidence, but “the fact that nearly 90% of Bloomberg’s pregnant or mother employees had no claims is significant.” Id. at 28. Moreover, when the EEOC was able to come up with at least some stories of alleged discrimination, it could not compare the experiences of its victims with similarly-situated employees. Id. at 29. The EEOC glossed over this point in the arguments in the briefing, but the Court noted that showing disparate treatment in this situation was “vital” in discrimination cases. Id. Finally, the Court determined that it was more interested in the quality of the anecdotal evidence it was reviewing – not mere quantity – and that the EEOC’s “evidence” was wanting. Id.
The EEOC also attempted to establish that there were negative stereotypes against women that demonstrate the company’s intent to perpetuate pervasive discrimination. Id. at 42. The EEOC pointed to a number of comments that were offensive, but the Court found that much of this evidence was either inadmissible hearsay or did not support the EEOC’s claims. Id. at 43. While the Court acknowledged that the EEOC was able to unearth some admissible evidence of sporadic negative comments, it was unable to connect the dots of those statements to some grand, company-wide scheme to discriminate against all 603 women who took a maternity leave over six years. Id. at 45.
Ultimately, the Court held that the EEOC’s non-existent statistical case – coupled with nebulous and downright unpersuasive anecdotal evidence – was not enough to move the case to an expensive and time consuming trial.
Implications Of EEOC v. Bloomberg
The Court’s decision concludes that the EEOC’s case was so riddled with problems that the employer should not have to face a trial as to the alleged pattern or practice of discrimination. A grant of summary judgment is rare in such a case. EEOC v. Bloomberg is a case study where a massive claim brought by the government was found so wanting to be booted out of the courthouse for lack of proof.
The failings identified by the Court may appear familiar to those who regularly litigate against the EEOC. Employers facing EEOC pattern or practice claims should consider each of the pressure points that often represent fragile vulnerabilities for EEOC cases: weak statistics, shaky or non-existent supporting evidence, and half-baked anecdotal stories that, when tested, dissolve.