american social service workers defended them or placed many of these workers jobs with a new position that was substantively the same burkhart a bachelor's degree preventing many of them from reapplying to get their unemployment agency similarly was facing budgetary cuts and closed a number of offices and terminated employees in those offices in those offices were predominantly in the chicago area which meant was the employment practice but the decision to concentrate the layoffs in offices that were disproportionately african american close but not exactly the the seventh circuit held that layoff decision was the particular employment practice and similarly here the court could conclude yes to lay off it was on land that that that doesn't lay any individual off that just says five percent have to go nobody knows who those five percent are going to be is that what you're saying is a disparate impact or it seems to me what naturally happens is someone then goes well how are we going to pick those five percent and they come up with a rule of right here wools a plan of some sort and that's the employment practice that may or may not have a disparate impact am i right yes the way i see the riff isn't the problem it's the factor that's used to decide it's the element or elements that are used to decide who is going to be on the chopping block for  a rift could say could include we need to cut by five percent get rid of all the new hires and so then the riff would include the standard for whose jobs are going to get cut and so then you would attack allow plaintiffs following watson to identify a practice because the decision making underlying that practice maybe i'm disciplined and subjective and so is is that your position i'm sorry t is that your position that the way this rift was implemented was through a group of essentially subjective practices yes the evidence does show that the decisions as to whom to termin e were made by the director in consultation with other managers but ultimately the directors subjectively made the decisions as to whom to terminate and in fact the deputy director for administr explained that quote no single uniform criteria task requirement was used in determining who the layout so before us you're trying to fit this case within watson i said yes there are genuine issues  just seems like you took the opposite position where you said the ref was not the result of subjective decision making so that  plaintiffs were laid off on their merits defendant had decided to fire them because they were not performing adequately or they become obsolete so point tips were attempting to explain that those cases don't apply here because the plaintiffs were in fact told that the reform did not reflect on their performance it was simply carried out due to the budgetary s and i have a question about the way that the plaintiffs framed the claim here and it's puzzled me that it seems like the the practice here was  effectively the combination of terminating seven the odd employees and at the same time bringing on forty odd employees so there's this notion that we have to cut but really it's it's a call and you know just kind of a shift in the composition of the workforce through the imposition of a college degree requirement and  that there's there was a decision to adopt a subjective ad hoc decision making process as to how they were going to implement this job reduction in job reduction and it is that decision to adopt allow changes you have to decide the practice that has the disparate impact and you're saying just the decision to get rid of fifteen percent or ten percent or whatever poison that is the factor so it's an objective factor or is it a subjective factor as to how they said we're going to meet that target you seem to be going back and forth and i really need to understand which one you're relying on so because of the nature of the record because defendants have both explained that they laid the plaintiffs off due to a severe budgetary shortfall showing that regardless of whether a reasonable jury found that this was simply facially neutral practice or whether it was an undisciplined and subjective practice that this does mean a title seven requirements well i both can be both right it's officially neutral practice in the sense of we're going to limit whatever five percent of positions and then the criteria that we're going to use and culling those people is a set of subjective yes it can be both by reason isn't that what you're arguing here it is that it is those two things it's the riff is we're going to we're going to have a a lot of people and rather than saying we're going to do that by reverse seniority or we're going to do that by explicitly by who doesn't doesn't have a college degree and said we're going to do it in some sort of hidden amalgam of subjective case by case decision but i thought that was your position yes and both  of ten people how can that have a disparate impact because title seven exists to prevent employers from firing or otherwise taking adverse employment actions and have tyco hires not hiring decisions you can't differentiate for sure it definitely applies to hiring decisions just as much as hiring decisions of course and if the employer use some sort of criteria in the hiring that hadn't i better go go and so that seems to me like it's not a decision just we've got to cut somebody it is do they use some criterion or practice and that and we're challenging a practice that was carried out in an undisciplined subjective way and moreover this practice had a clearly disparate impact on african americans the agency it from your brief that you didn't dispute the fact that was inaccurate because there were certain positions that were never going to be on the chopping block something couldn't be as a matter of law as a result of court order or legislative requirement d require prevent social workers from being fired did have requirements that social workers not have over a certain number of active investigations and it set out a  order that there has to be a certain number of social workers so it's not really quite right to say that they ordered the degree or does not require a certain number so workers be a place but defendants workers couldn't be fired seems to work against it here because the social services assistance and social work assistants who were fired were employees who had been helping the agency meet its timeliness and adequacy goals by now but i think i think i think the point remains that there were certain number that when they said all right who can be cut they have to go wait a minute we have to set aside x number of people they can't be touched now let's look at who's left right although the question here is that looking at who was fired the agency  mainly people in grade seven and eight which were predominantly african american white employees are predominantly in grade eleven and above the question here is why have sounds like the type of crime you could challenge was this was targeting grade seven and i i didn't understand your brief or any point to be arguing or for your statistics to have shown that the problem here was seventy eight was the real standard basis going out into the field to meet bullish on mandates instead of perhaps targeting management or other higher paid positions that were not so integral to meeting with sean mandate to question his case is not justification irrationality as i understand of cases been divided i'm really talking about whether the showing of disparate impact has been made in the first instance that's so if your s analysis did not take account of positions that were not how did you meet that burden plaintiffs did actually account for for that because as defendant's expert dr bronner's conceded on page twenty of the j f k on some level all positions were considered for the breath dr bronner's later went on to say it was not inappropriate to consider rationales the dr berner relies on parsing the layoffs into different subgroups goes to the potential justification of the district which is the second step into which no discovery has been how did you ever object in the district court to the reaching issues that as to which plaintiffs have yet to have to scupper eight was there any objection i mean it wasn't you know actually in the district court but did did counsel for the class in the district court ever make an objection you can't decide those questions because that certain positions had to be laid off and just considers the disparate impact within those positions when the question here is why c f s i laid off those positions we haven't talked about the disparate treatment claim and i shows that the degree requirement had a large just for impact on african americans because in this area african americans are three times over three times less likely to have  bachelor's degree the supreme court in grades held that a high school degree requirement had just for impact where african americans were also three times less likely to have a high school degree which federal rule of evidence to one does make clear this court may do you said you're relying only on the statistics for the disparate treatment climb again i why so both the supreme court and circuits have made clear that in hiring cases census data is an appropriate i see your effort to bolster the claim i'm wondering whether i mean it without ever having permitted discovery on anything but the threshold showing that there's no there wasn't discovery allowed on intent was there only discovery was on was on the requirement had a significantly disparate impact on african americans who might have wished to apply for the f s w position but for the discriminatory degree requirement they have court holly johnson for the district of columbia isolating a particular employment practice is essential to causation because as the supreme court has repeatedly informed us it's the only way to establish that the employment practice caused a racial imbalance rather than a myriad of other innocent factors that could cause a racial imbalance and indeed the dr monroe's analysis was not at all based on the decision to abolish certain positions her analysis was based entirely on the terminations rate the ratio of african americans separated versus the ratio of caucasians separated so there maidan i would never suggest that it's not relevant i suggest that it's not probative because it's not statistically significant and so it's hard to separate out sometimes the particular employment practice issue and the statistics faced with i believe one point three million dollars cut it had to make its personnel budget and it then met with all of these different leaders within the agency and they made many different decisions as to how those cuts could be made now the fact that in the affidavit that was presented by the district that summary judgment doesn't go into gray into detail about all of those different decisions that were made it simply lays out the three service model does not mean that it's undiscipline looking at this fairly significant disparity and terminations rates but d c is kind of a moving target as to the basis for its decisions so what a plan is supposed read now we know that they had to do it different to alter the to resolve the budget concerns and what they decided to do in order to continue to satisfy their court ordered require just budget concerns as budget internal requirements a statutory requirement is they have to decide how are we still going to get the work done and what evidence do you put in the record of how many court order to the statutory surely required positions they were the first just non negotiable purposes of the employment i know the references to it but i haven't heard and this could be my fault i haven't heard what that number is it's the evidence is in the record in the form of the organization chart in conjunction with the li on documentation so we know and there's i think i introduced you to me with the numbers with the number is i know i put the numbers in my brief it's thirty percent of the workforce and my brief lists the number of cases carrying social workers that existed in the agency at the time and the number of cases during social worker supervisors those were the ones subject to the list on order it comes out to thirty percent of the workforce and went through the organization card after the show you also said that there were things required by legislation of employees could not even be considered for termination i think where i'm struggling is with with the question is it that there's sort of an underlying assumption that it was the district's burden of proof to do that the district didn't introduce it anyways you keep saying they were were wrong because they were all these positions right you're talking their statistics this is your argument i'm not making it up yes there's this is wrong because there was x number of positions that were just never susceptible to a layoff fairly characterizing argument a point as for the ones that were absolutely off limits those are the case carrying social workers and we have provided those numbers otherwise what we showed was that there were different decisions different concrete decisions that position yes as far as functions that needed to be performed there's and that's the agency mission statement in the record that refers to all the functions that need to be performed now i don't know that there was any one position that was  no thirty six deposition that was conducted the problem is that the plaintiffs introduced an expert that simply assumed that all the jobs were equal and ignored the evidence that the district did provide that there were different decisions that went into the ultimate decision as to which positions to abolish but that just seems to be saying that when they make out they're just very empathic case they have to accept your definition of the practice because of disparate impact rather than their own when they have to conduct discovery and then put to the decisions that were court that it was under subpoena and subjective when they didn't look into the decisions that were made they did not ask how these decisions were made they did not ask who made the decisions and which decisions were made by which managers and how were certain positions put on the block and that is critically important to determining what the employment practices were and that is the employee's burden that is what the supreme court has specifically held it's the civically says i know this is a heavy burden we know this is a burden on the employees but we don't think it's fair to require the employer to come forth and try to explain the racial disparity when it could be based on all of these different factors so what i've introduced in the court in my brief is the different things that could cause to the racial disparity that the employees didn't factor in published johnson i thought that's where we started about testimony and the answer to the question of what factors would determine whether or not you were being subject to losing their job and they were myriad factors given the was an expert testifying on statistics he was not a district official and he did not have personal knowledge of what using summation the basis for his sophistical analysis of someone had to tell him he was also basing it on davidson's declaration and i will concede that with dr brown r s analysis it is there is some cart before the horse on that but that's not the point the point is that the employees have to produce statistical evidence of a disparity it's not the district's burden to disprove it and when you're recognizing them a they're not particular people i think that his his testimony or his analysis was very helpful in pointing out the flaws in dr monroe's analysis but i do not think that he factored in the new service models or the list on factors either i would agree with that the district is not relying on dr braun are is a statistical analysis to establish it's right the summary judgment it didn't need to introduce any expert testimony at all all that matters is that dr all that matters in this case is the dr munro conceded that her studies validity rested on her sumption that all jobs were equally at risk she conceded that and all jobs were not equally at risk but to ask this question of ms smith but maybe it's really more appropriately directed at you the district judge bifurcated consideration in the case and wasn't going to go into the question of the district's potential justifications for any disparate impact but it does seem to me that the way dr bronner's is challenging dr monroe's statistics is by saying well there were these various job related reasons why the risk of discharge were risk of just heard were different in different subcomponents of the agency but that's something that the judge had printed and i thought till later so there is a way that that sort of as you say getting the cart before the horse now both of the experts went on at length will indeed i'd say more so dr monroe about her skepticism about the reasons for doing doing the things the district did none of that evidence was cited or referred to or argued in the briefs and that's what the and that's what the that's what the attorneys decided to bring forward so yes there was discussion among the experts regarding the justification for that action is that that's not really been litigated yet well but the very notion that the fault or the flaw in plaintiff's experts approach was that it should have been divided up in the way that that the district's expert did but my point is just that that division itself seems to be a division premised on various ideas that the district had a legitimate employment related basis for treating different offices as differently subject to the ref and so it gets it just brings forward that territory that the district judge had tried to leave untouched for later yes i agree i agree that it muddies the waters a little bit but i will note that the attorneys at least the district attorneys in arguing this case were very careful not to step beyond those bounds and there's a big difference between isolating a particular imprint claimant practice which is the adoption of these service models which everyone concedes took place and affected the decision as to which positions to abolish nobody disputes that the employee's dispute whether it was necessary whether it was a good idea but you can isolate the fact of these decisions and the fact that these realignments affected how which positions were abolished which in turn affected the racial composition of the rich you can separate that from the business justification which the district has has never introduced the district has not gone into its reasoning it has not sought discovery yet on the reasons it is not produced discovery get on the reasons if if we disagree with the district court that plaintiffs have failed to identify a practice susceptible of analysis under title seven whether because the ref and the various decision making criteria through which it was implemented are a specific practice or because whatever practice the district tag was not capable of further separation under the and twenty one civil rights act if we believe that the district court was  error and send there's not a practice here then we don't really need to address the question of a citizen who sent it back to the district court oh absolutely not i believe that there's there's two factors here because that was fully  d the district court didn't reach the question of the validity of the statistics but that's not a discretionary question at the stage of summary judgment it's de novo it was fully briefed if this court finds that the overall selection of positions is a sufficient single employment practice and can be analyzed as such then it needs to look at dr monroe's analysis and see if it is possible for that to have probative value and the supreme court and this court have repeatedly held that this is something that can be considered and should be considered a summary judgment in garcia in two thousand and six this court held the statistics to be probative to even satisfy the crime of aisha burden must incorporate key relevant variables those listed on factors taking thirty percent of the workforce out of the equation that's a key relevant variable per statistical analysis has no validity because she did not consider that factor and that's something this court can decide to know and should consider de novo also her failure to consider the retention standing of the employees the difference in just the disparity of the racial disparity may well have been because once they decided the positions that could have been abolished that african americans tended to have a lower retention standing that's not something that was within the control of the agency that was a legal requirement that the agency had to comply with the i  do i have concerns that dr munro keeps referring to managers a select employees for terminations that's not what happened the agency selected positions to abolish and then there's a whole regulatory process that determines which employees will actually be separated so the failure to account for those factors in itself just invalidates her study and i think that there are times where it could be a battle of the experts but this isn't one of those dr wood muck munroe admitted that her study relied on her sumption that all positions were equally address and the evidence is undisputed the positions were not equally at risk and because it's such a large percentage it takes all probative value out of her statistics so this core dump can we factor in the plans how can we tell how much that does or doesn't discount the suspects that dr monroe relied on the new service models there is some i mean you can get done with the raw numbers that are in the record but the point is that the court can't use the plaintiff's job to produce that through an expert analysis through multiple regression and the raw data alone is not going to create a statistically significant number and it's the plaintiff's burden to establish that you saw your brief here mention the thirty sean no but that's new evidence so we can't really you can take judicial notice of what the court orders and wish onset and that's i'm referring to court orders in le sean and that's what i'm citing too but just require the record doesn't show whether  positions that were never on the chopping block but if no one ever filled in that blank and said how many positions there were and that that number rendered statistically insignificant the disparity she has shown seems to me  herself acknowledged that she had not taken this into consider i can't have what you could say imagine the this someone had taken into consideration was two positions just imagined i know that's not to you but it was to position out of what she wrongly included was statistically seen canned air the district courts i mean i agree with you that is not in the actual we introduced exhibits but we refer to a list on in our briefing we back on the idea that this specific thirty percent number needed to be in versus looking at just if you just look at the office of age the programs and that's what this comes out of that is the that is the trend of struggling to remember the word the front running office it provides the for the front burner services the of agency programs and it is almost entirely consistent of case carrying social workers and that is plain from the record that is in the record so but even if this court struggles with le sean then let's look at the numbers that are in the record because there are numbers in the record that are about specific employment decisions that dr monroe i could not existed but did not have he laid into her findings she acknowledged that the this  assistance and associate positions the ones that were completely in the eliminated were one hundred percent likely to be separated but she didn't calculate that into her decision she thought they were too homogeneous for her to get a statistically significant outcome from that and so she didn't two thirds at least two thirds of the people suffered were separated based on into employment decision that is not the same decision as the other decisions regarding the the reason why the courts have focused so hard on isolating particular employment practice and title focus is on the plaintiffs ability to look at the elements of the decision making process and the reason why is so that an employer is not up here in court trying to defend all of these different things that may be college degree requirement could not have any disparate impact because of the bottom line racial composition of people hire i don't like to see you decide whether that was really what his holding was i would contend i don't dispute that had that the hold and that would be error and you make that clear absolutely correct you cannot do that kind of bottom line reasoning but his holding was that the plaintiffs failed to show any statistical disparity the plaintiffs in their brief had two sentences devoted to this issue and their that there is no possibility of a racial disparity from what you have introduced because they were all african american so yes judge hillard i completely agree that if that was just a straight up holding that would be error but his holding was that there was no statistical analysis and there was a statistical analysis and i know my time is up but i do want to address that because i think it's really important i will be brief at the court this court held in secret or that statistics on hiring practices must account for the minimum objective qualifications for the job and aside from the degree requirement the new family support worker position that was created required specialized knowledge in social work and in how child welfare agencies work this was so important that if you weren't from say you had to have a bachelor's degree in social work there is no evidence even if we accept the census data coming up on appeal for the first time there is no evidence that the qualified labor pool had a racial disparity between those with a college degree and those without what about the people who were actually fired and this is the same question i asked ms smith it strikes me about the district if you take as one practice the laying off of a lot of people as they're bringing up other people on that one might say that it was a call using a college degree requirement in which case the relevant pool would be the people who are already working there i don't think that that's appropriate in large part because the college degree requirement is not the same thing as this new position like the employees are the ones that decided that the new position is entirely based on the college degree requirement that's one of the requirements but they were going to create this new position just the evidence shows that this new position was created based on a new team in model it was a new model of service the evidence also shows that there's a virtually complete overlap between the report requirements the abilities required for the new position and the villages required for incoming employees so i want to make sure i'm understanding your question correctly because this isn't  think that's come up yet in the briefing you're asking what was in the briefing that just haring of comparing what you needed to do for the eliminated position and what you needed to do for the new ws i think his position it was a virtually one hundred percent overlap between the things one needed to be able to do the functions of those jobs that i don't think is in evidence yet oh yeah i think that no no no the position descriptions are in evidence yes and dr monro opinion which should have been saved for phase two of discovery is also in evidence but the reason why the district created the new position the reason why they thought it was necessary what the teaming model was why they did the college degree that all falls into the  first thing that had to be done was to establish that the creation of that position replacing a certain number of employees in these two positions with this new position had a disparate racial impact i will also know because i think that th more quickly answers your question although i think it's not necessary to answer your question that if the qualified labor pool was just the people who were already working as assistants and associates i believe that that's the group that was so  homogeneous as to be entirely or almost entirely african american so there's no way that there could be within that pool a disparity between those with college degrees those without college degrees based on race and that is essential for statistical analysis right thank you thank you this course correct that defendant offered many different justifications for the raf and there is no evidence that any positions were categorically off limits in a way that would where so that so argue that certain objective factors abound that managers hands in deciding whom to promote but the evidence showed that in fact managers made those employment practice moreover to switch gears and address the degree requirement my colleagues cite seger but that is a promotion case and in hiring cases the supreme court has made clear that census data can show a disparate impact in fact in hazelwood in that no thirteen supreme court made clear that where a job  has requirements that simply are possessed by many people or fairly readily acquired the general population is the relevant pool for comparison thus the plaintiffs have shown that the rift had an overwhelming impact on low paid african american workers and have presented sufficient evidence both with respect to the rest