To the extent possible, the statistical analysis must include nondiscriminatory factors that reasonably might be said to account for any disparity. In a hiring case, for example, relevant factors would include the racial makeup and qualifications (e.g., education and experience relevant to the job) of the applicants, or of the general labor market if applicant data are unreliable or difficult to obtain. The disparity also should be “statistically significant,” meaning unlikely to have occurred by chance. Other instances and evidence of discrimination should be examined in conjunction with the statistics. If the statistical disparity is gross, it alone can establish a pattern or practice claim, such as when there is an “inexorable zero.” In all cases, the employer’s explanation or rebuttal (which may be statistical, nonstatistical, or both) should be fully analyzed and weighed against the evidence supporting the claim. EEOC staff should contact headquarters experts for assistance in statistical cases.


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