Almost all employers face federal nondiscrimination requirements. In addition, nearly all states have enacted overlapping or additional fair employment practices laws dealing with employment discrimination.1 These laws attempt to ensure that employers base their employment practices on performance and merit rather than non-job-related characteristics. Legally protected characteristics include race, sex, ethnicity, national origin, religion, age, disability, and in some jurisdictions sexual orientation, pregnancy, and predisposed genetic characteristics. Individuals or classes that think they have been discriminated against have several options. In some instances, current employees can use established company grievance procedures or enter into arbitration to resolve their dispute.2 More often than not, however, current and prospective employees do not have these options available to them. These claimants turn to civil litigation.
Employment discrimination allegations often charge an employer with maintaining a pattern or practice of discriminating against members of a protected group. These allegations require plaintiffs to initially demonstrate that a pattern or practice of discrimination exists by analyzing the employer's records and data. Statistical and economic methods have become indispensable in such analyses and triers of fact often rely on these methods to decide liability. In cases ...