Collecting data in discrimination cases

Regardless of who the attorney is representing, it is important to provide the statistical expert with employment information that completely describes the employment processes that are being studied. Generally this will involve providing the statistical expert not only the hardcopy or electronic employment data that describes the statistical disparity, but in addition, the background information on the employer and the employer’s practices.

Typically, the background information will include information from sources such as electronic databases provided by the defendant, employer handbooks, written descriptions of the relevant selection processes, and depositions of human resource personnel and other key decision makers. If at all possible, engaging the statistical expert early in the discovery process typically will allow the expert to more adequately prepare a listing of the specific information needed in the employment analysis.

In most employment analyses the statistical expert will at a minimum require the following information about the defendant’s employment processes.

A. Employee level information. The employee level information required by the statistical expert includes not only the demographic and employment information, such as date of hire, salary grade, etc., for the plaintiff but also for all the employees in the organization being analyzed. This information will allow the statistical expert to construct comparison pools of ‘similarly situated’ employees.

B. Employer practices information. This type of information includes information about the factors that are incorporated into the employer’s selection or compensation processes. For instance, in cases involving discrimination in employee terminations, it is important to determine the specific formula or individual factors that were considered by the employer in the relevant reduction in force action.

C. Company specific information. This information generally includes company specific factors that describe the organizational differences between different divisions within the relevant analysis unit. For example, in some companies that closely tie financial performance to employee salaries, it is not uncommon to observe higher average pay levels in division that generate higher levels of revenue for the company. For larger organizations, the pay or salary grade structure for the company is also important information for the statistical expert.