that pursuant to Wilson, the relevant time frame for the § 1981
claims is two years from the date of the suit.
The Court disagrees. In Anton v. Lehpamer, 787 F.2d 1141 (7th
Cir. 1986), the Seventh Circuit indicated that Wilson would not
be applied retroactively. Accordingly, the relevant time frame
for the § 1981 claims is the five-year period prior to the filing
of this lawsuit, or the period beginning on January 9, 1976.
Statistical proof pertaining to a time prior to the relevant
time period may be admissible as circumstantial evidence of
discrimination occurring within the relevant period. Hazelwood
School Dist. v. United States, 433 U.S. 299, 309 n. 15, 97 S.Ct.
2736, 2742 n. 15, 53 L.Ed.2d 768 (1977). Statistical evidence
covering the period after the filing of the lawsuit is
While most courts prefer time-frame statistics, static work
force statistics are relevant especially if they demonstrate
great disparity. Schlei and Grossman, Employment Discrimination
Law, p. 1365 (2d ed. 1983).
III. THE CLASS CLAIMS
With this legal framework in mind, the Court turns to a
discussion of the claims and an analysis of the evidence
A. The Claims and Theories of the Parties.
At the outset, the Court notes that there existed prior to
trial, and even at trial, confusion as to what theory upon which
the plaintiffs were relying. The class plaintiffs claimed that
this was both a disparate treatment and disparate impact case.
The defendant agreed that this was a class disparate treatment
case, although it disagreed with the plaintiffs as to what that
meant, but argued that disparate impact analysis was inapplicable
to this case because the plaintiffs could not point to any
objective standard or test used to exclude blacks. The
plaintiffs' response to this latter argument was two-fold. First,
the plaintiffs alleged that the defendant utilized a fifty-mile
rule to exclude from consideration those applicants who resided
outside of a fifty-mile radius from the job location. The
plaintiffs argued that this rule, although neutral on its face,
had a disparate impact when applied to black applicants. Second,
and alternatively, the plaintiffs asserted that if there were no
fifty-mile rule, then there existed excess subjectivity in the
defendant's hiring process and such subjectivity had a disparate
impact on black applicants.
The parties also disagreed as to meaning of a class action
disparate treatment case and as to what evidence could be
presented to support this theory. The defendant argued that the
class claim was a pattern or practice claim consisting of only
statistical evidence to demonstrate that the defendant engaged in
a pattern or practice of discrimination over the relevant time
frame. The plaintiffs seemed to approach the class claims as a
number of individual disparate treatment claims, although the
plaintiffs recognized that statistics played a major role.
The legal analysis outlined above should indicate how this
Court viewed the case. First, either the disparate treatment or
disparate impact theory may be applicable to a given set of
facts. Regner v. City of Chicago, 789 F.2d 54 (7th Cir. 1986).
Therefore, the plaintiffs could properly approach this case
arguing both theories.
Second, the Court has construed the class disparate treatment
claims as claims alleging a pattern and practice of
discrimination on the part of the defendant. The easiest and
almost exclusive way for the plaintiffs to demonstrate a pattern
and practice of discrimination is by introducing statistics that
allow the Court to infer that the employer has a pattern or
practice of discrimination. Anecdotal evidence of individual
instances of discrimination is not necessary, but can be used to
buttress the statistical evidence. International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 360 n. 46, 97 S.Ct.
1843, 1867 n. 46, 52 L.Ed.2d 396 (1977). A pattern and practice
case is not made by presenting a number of individual disparate
treatment claims under the McDonnell Douglas
framework. This Court would not have nor could not have certified
the class if such were intended. The plaintiffs are still under
the impression that individual claims can comprise a class
disparate treatment action because they argue, in their proposed
findings, that the Court should certify a subclass of those
individuals that applied for work on March 27, 1979. Therefore,
the Court's job with respect to the class action disparate
treatment claims was to determine if the defendant engaged in a
pattern or practice of discriminatory hiring during the relevant
time frames. See Coates v. Johnson & Johnson, 756 F.2d 524, 532
(7th Cir. 1985). The Court considered the statistical evidence
first and foremost.
Finally, the Court agrees with the plaintiffs that this case
can also be analyzed under the disparate impact theory. See
Regner v. City of Chicago, 789 F.2d 534 (7th Cir. 1986). As will
be discussed more fully later, the plaintiffs have not convinced
this Court that there existed a hard and fast fifty-mile rule.
But, by the same token, they have convinced the Court that the
defendant subjectively applied distance from the workplace in its
It is important to note that a disparate treatment pattern and
practice case and a disparate treatment excess subjectivity case
are identical in terms of evidence. Schlei and Grossman,
Employment Discrimination Law, p. 1288-1289 (2d ed. 1983).
[I]n both the disparate treatment pattern-or-practice
case and the adverse impact "excessive subjectivity"
case, the battle is determined by an evaluation of
the probative force of plaintiff's and defendant's
statistical evidence and the evidence with respect to
alleged specific instances of discrimination. The
proof considerations are no different whether the
case be styled a pattern or practice of disparate
treatment, on the one hand, or adverse impact
resulting from an excessively subjective system of
selection for hire or promotion, on the other.
Id. at 1289-90 (footnotes omitted). The only important
distinction is that in the excess subjectivity case the burden of
persuasion would shift to the defendant after the plaintiffs
establish a prima facie case.