Question

1. Application of the “4/5 rule”

Porpoise Swimwear, Inc. is a clothing manufacturing company located in South Florida. They produce children’s recreation wear such as swimsuits, shorts, cover-ups, and t-shirts. Their clothing is sold throughout the U.S. through department stores such as Bloomingdale’s, Macy’s, and Nordstrom’s. They currently employ about 475 employees. Of these, 320 are women and 155 are men. However, of the 100 employees at the management level, 85 are men and 15 are women.

This year a strategic decision was made to expand internationally. Therefore, the workforce is being expanded at the production and the supervisory level. They hired 15 supervisors according to the following breakdown:

	Men		Women
	White	Black	White	Black
Applied	20	5	8	2
Hired	9	4	1	1

Five of the women, that did not receive the supervisor positions, filed a class action suit against Porpoise Swimwear, Inc. with the EEOC.

Your Assignment

You work for the EEOC. Your supervisor told you to use the “4/5 rule” to determine whether the women have a prima facia case before we proceed any further.

a.      Perform the math to determine whether there is a prima facia case. You must show your work in order to receive credit.

b.     From your calculations does it look like the women have a case and can proceed to court? Explain why, or why not.

c.     At this point, who does the burden of proof shift to? Support your answer with the legal information that you learned in class.

Answer 1

(a) Men Hired/Men Applied = 13/25 = 52%

Women Hired/Women Applied = 2/10 = 20%

Whites Hired/Whites Applied = 10/28 = 36%

Blacks Hired/Blacks Applied = 5/7 = 71%

Women Hiring %/Men Hiring % = 20%/52% = 38%

Since Women hiring %/men hiring % is less than 80%, there is a prima facia case.

(b) From calculations, it is clear that women have a case because less than 80% of the women have been hired as compared to hiring of men. Therefore, they can move to court.

(c) The burden of proof shift to the five women who have filed a class-action suit. There is a difference between causation and correlation. Causation is important because employers are only liable for disparities where plaintiffs establish that the challenged employment practice causes a disparate impact. It is not enough for a plaintiff(five women in this case) to show that an observed disparity exists.

The plaintiff must establish with some certainty that the challenged practice, not chance or some other factor, is the cause of the disparity. Because courts can never know the counterfactual (what the selection rates would be in the absence of the challenged practice), they instead impose liability when the plaintiff satisfies one of the two prevailing tests, thus satisfying the burden of proof by a “preponderance of the evidence.

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