they were denied employment as of entities policy of automatically excluding applicants with felony convictions they applause a bully pleaded that this policy violates title seven because of its disparate impact on black applicants said a low bar for the factual matter that a complaint must contain plausibility is not a probability requirement it's simply requires enough factual matter to state a claim for relief that is plausible on its face in a title seven disparate impact case the complaint must allege facts that render it plausible that an employment practice has the effect of denying members of everything acted it's not clear to me whether the district  standard as to what allegation should be in the complaint but i think that the fundamental problem with the district court's decision is that it rejected use of general population statistics to serve as the plausible factual basis for showing that the particular employment policy here causes a disparate impact that is not the correct standard for for  many many years the supreme court has said that certainly general population statistics can be the adequate labor poll even at the prime aphasia standard facial stage so to require required at the pleading  stage under that case law must be wrong i'm going to ask you about that is that in your view always going to be adequate to rely on general population standards no matter what you're talking about so i'll give an example  let's say chemical engineering jobs i don't know just randomly would you always be able to just use general population statistics without ever asking whether or having any need to allege that accurately reflect the characteristics of the pool of applicants from saying chemical engineering jobs at the pleading stage in a case like this were alleging an overbroad exclusion policy yes because the general population statistics show that overwhelmingly there are these disparities between blacks and whites not just in rates of arrest but rates of arrest rates of convictions rates of incarceration  necessarily true for people who have engineering degrees right it is i think that is well the disparities are so profound that the reasonable inference to be drawn from those statistics is that they would be relevant or that those disparities would exist regardless of the particular job that the person what you are saying that testable but your view is that people who have advanced degrees are experiencing different rates of arrest and incarceration based on race you run or there are in specific data that i could cite to the sort of granular data that you're referring to simply just does not exist at the pleadings would you find that such data if you were given discovery yet doesn't exist why do you think you'll get it if you have discovery if we had discovery we can look at and actual applicant pool we can determine what the qualifications for the job actually are we can compare the applicants who were african american versus caucasian and we can determine whether  african americans were excluded at higher rates than white applicants because of criminal records so we can look at all those features once there is discovery but to require that plaintiffs prove that from the outset or allege that just posted into it i mean i don't know what data exists in the world if you look at for example of the e e o c as guidance in this area they rely on the national population statistics which they say are so profound that they give rise to the the serious risk that an overbroad exclusion policy is going to exclude more african americans than whites or minorities spec exists on a more specific basis yes that's right a reasonable point but why is that the case i don't understand as its height and weight requirements it's pretty clear the general population and the particular applicant pool are going to be pretty similar one can infer that but it's not clear at all clear to me why the applicants for this position and the people who meet the qualifications for this position are going to be anything similar to the general population of the incarcerated universe i have a few responses to that st at this stage we really don't know that this is a somehow a uniquely and different kind of position requiring a different level of yes and we and we have the well st of all the company up by this exclusion policy regardless of the that the person is applying to so i say sorry i see my time is up so if you wouldn't mind if i answer the question you can answer so i think one is that we're talking about a company as a ledge that applies its exclusion regardless of the particular job that someone is applying to but i think more to your point the national statistics show disparities that are so profound that it would in fact be an reasonable to assume that they're not impacting n t t applicant pool at least to some degree and thus it would be plausible to infer that using such a broad exclusion policy that they're using is going to have a disparate impact on african american applicants given these profound disparities that we're seeing across the general population and i think man just has one more question i'm sorry if i could just ask you to clarify a different point i understood in the briefs that there was some dispute over  what the plaintiffs are claiming the policy is whether it's a policy of denying consideration to anyone with any sort of criminal conviction or some with a felony conviction i had understood from your briefs that you were arguing that was any criminal connection but in your introductory remarks you mentioned felonies and i was wondering if you could just clarify what your side's position is with respect to what you have a know the precise contours of the policy what we know from what was told to the plaintiffs was that they were told that they were denied employment because of their convictions and also in another instance because of their felony convictions so as a result of that we deliberately pleaded somewhat broader to say they were denied employment because of their certain certain convictions including felony convictions and and we can refine that as we are able to move forward in discovery i think though that regardless of whether it is a felony exclusion or a somewhat broader conviction exclusion the statistics that we speak to all of those things regardless of whether it is a conviction or a felony conviction or rate of incarceration the disparities are so profound that they would impact entities applicant pool just like good morning your honour's just a puts a tele for n t t data please the court this case presents two questions what is the pleading standard for a disparate impact claim and have plaintiffs met that standard here as counsel expressed as cross ashcroft versus a ball is binding and that court stands for that case stands for two propositions you need to note the elements of the claim and the standard is plausibility not possibility you need to plead facts pleading facts that aphasia case of disparate impact a plaintiff must show that a facially neutral employment policy or practice has a significant disparate impact that court was deciding it will be six motion to dismiss a disparate impact claim and wa disparate treatment place case knowledge so i would say that brown vs coach stories would still be binding authority and that a crime of a case should be played in a disparate impact case and applying that basic pleading standard of plausibility and not possibility and that a plaintiff must plead facts to plausibly allege a primal facie case i would submit to the court that that standard has not been met here in the prime of facia case a plaintiff must allege facts that there was actually a policy that caused a disparate impact at the employer in question and that has not been plenty here the complaint is totally bare of any allegations that there was any disparity at n t t data it is not enough to come into court and allege generic in opposite general population statistics and then submit to the court that the employer somehow has some kind of disparity at their workplace there is a lot to be more is and isn't there allegation that  don't really have to prove the outcome you can look at the city either two ways right as disparate impact case or you can say well look there's a look at the population of people who are working at whatever company it's not r representative and then there are cases saying look boards cove that may not be enough but you can look at the output and then you can sort of say well here's a policy and try to prove that the policy generated this racially disparate outcome but can't you do it the other way which is what they're saying is look at the inputs input here is the policy which is for statistical reasons very likely to generate a disparate outcome and say well we don't have to know who who's working at n t t because we can as a matter of logic say that  disparate this choice this policy choice to make is going to yield a certain outcome so you can work at it from the outcome and reason backwards to the policy must be racially impactful or you can take the policy and say well we know that there's going to be an outcome and and let's have discovery to find out how it plays out of the n t is not just what they're doing here they're looking at the input not the output exactly they're looking at the input and the output and you need to play both so you need to look at irrelevantly of the teachings the board code you need to look at your relevant labor pool you need to put your numbers were terribly skewed you know ninety percent of a protected class had whatever the characteristic and their policy was we shall not offer a job to anyone with that characteristic wouldn't that give you a case let's say ninety nine percent of the population of this of this racially protected class had characteristic x and we will not hire anybody with characteristic x at certain point wouldn't you agree that the statistics can become strong enough that they can impact i wouldn't agree with that i think that you have to look at your relevant labor pool and if your labor pool isn't the group that has the ninety percent characteristic going through the screen then you wouldn't have a disparate impact on the outcome you have to look at the facts of context specific allegation need to look at the facts this play and one of somebody said and he said we will not hire anyone with sickle cell anemia and they had statistics in saying that is it is an incredibly high rate of sickle cell anemia insulin in the african american population one that gives you a disparate impact going i disagree i you would need to look at your pool of applicants you would need to see whether that pool of applicants applicants has that type of characteristic and then you look at your policy and if you look at the outcome and if the outcome is there's a disparate impact or if the there's some kind of suggestion that in that employers workforce that there is a disparate impact then that is where those are the facts that you at least at this stage given that that littlejohn says you only need to give plausible support to a minimal inference of discrimination why don't the general statistics create a plausible claim the general statistics don't create a plausible claim because in the input and output analysis they just speak to the input they don't speak to the output and you need both in order to plea to disparate impact cl otherwise it would seem any job that requires a background check would be presumptively getting to discovery right well that's correct your honor and that's exactly what plaintiff's opponents are advocating for here essentially asking this court to issue a person a rule that says whenever national statistics are played plus some kind of blanket ban or policy and we have a dispute over what type of a policy was the factual allegations supporting the complaint was adequately alleged but a per se rule that national population statistics plus a blanket ban gets you through to a motion to dismiss unlocks the doors to discovery and grants plaintiff's access to confidential employee and applicant data and that's simply not enough that's been rejected i would because it wasn't adequately supported by rule making the e e o c st is freeman case i think is also instructive in that regard as well as the l versus septic case where the court specifically acknowledged that there is nothing per se unlawful about having a blanket ban and acknowledging the e e o c guidance and the fact that the guidance cites these national statistics so there's nothing per se unlawful about having that so if you can walk into court and allege national population statistics that have nothing to do with the employer in question and then a blanket ban which is not per se unlawful you cannot possibly have enough to get past a motion to dismiss on it and the question isn't whether it's personally unlawful the question is whether it has a disparate impact erecting that's a different a different question from whether it's personnel unlawful and there are no facts played here that there was any disparate impact that the output had any disparate impact and my point was that it would be per se getting to discovery that would be per se getting t discovery but in order to get to discovery you need to plausibly allege a claim for relief and those would you agree that i can't remember the particular jobs i think one of them might have in a web developer convictions would you agree that that would be enough for them to show disparate impact from the pleading stage i would not agree i would say you would then need to look and then allege with some sort of factual basis that within n t t data there's a  impact on african americans in the percentage of african americans that hold the web developer position the inputs to create a disparate impact case if the standard that n t t says is the correct standard were implemented there would be no title seven disparate impact cases that's not the kind of information th plaintiffs have at this stage we do not know what the actual impact of the policy is at and t t what we do know is that these kinds of policies criminal background bands are particularly likely to have a disparate impact we know that a different question is that pathetic but i mean so for a job requirement that said you have to have a college degree all you would need to get to discovery for a disparate impact claim would be to show that different races are genders or ethnic groups have different rates of college degrees correct that's right your honor that's all you need to do and in addition to the other parts that you have an x actual plaintiff who is subject to this policy yes that is enough to get you over the possibility standard to get to discovery there are certainly other mechanisms post to this post and motion to dismiss stage that could easily get rid of cases that are not  case the general population statistics again are so profound are so pervasive that the reasonable inference is that no matter how you slice and dice them you will find a disparity is it possible that in this case that entities workforce is in fact immune from these disparities yes it is and there are other places all into you have to do is produce that data look this policy the way we applied it because of our particular work force it doesn't have a disparate impact in this case and then if there were no i mean i think that would be unlikely claim that anybody would bring it because it is unlikely that there is that that is likely to survive any sort of summary judgment evaluation and then a higher number of people with criminal convictions therefore are going to get chucked out of the pool why wouldn't that be true that that when they're just getting knocked out of a box they're not getting a nd look because then i'd still think you would have a different you'd have a different now says when you got to the business necessity of the policy but i thought the business necessity would would focus on whether the criminal convictions matter to someone's performance of the job it wouldn't matter whether it was a an african american with a criminal conviction or like you're not suggesting that they would be more justified in keeping out men who are convicted than keeping out african americans not it's not i do not has is severely pervasively disparate impacted in the general population and there is a policy that relies on that then absolutely if you look at the dothan case again that was it was a gender case and it was about height and weight and in fact that the court relied on the general population statistics and i realized that i was in summary judgment i understand that perhaps the inferences aren't as strong in a criminal justice background case than in a gender case but it then that is it that is a gender case where they relied on gen general population statistics isn't that just because it was about height and weight and there was the assumption or a fair inference that people in alabama are not particularly sure taller than people throughout america certainly and get it different from suggesting that the general population of everyone in america matches the general population of people qualified to be web developers and that is certainly true your honor the inference is definitely stronger in the case we're talking about one way because there's no reason we believe the end friends here is is a very strong one it might not be as strong but again in the daughter case that was in summary judgment where after a bench trial they relied on those statistics we're not talking about the pleading standard whereas here this is just plausible enough to get us over the hump and i think it in fact that it is probable not just possible that any kind of blanket ban unemployment given how profound and pervasive that these statistics are will at least have a disparate impact and then so that to get us over the hump t