The Associated Press recently reported, “Two women who lost their jobs at Twitter when billionaire Elon Musk took over are suing the company in federal court, claiming that last month's abrupt mass layoffs disproportionately affected female employees. … Days after the world's richest man bought the social media platform for $44 billion, the company told about half of [its] employees on Nov. 4 that they no longer had a job but would get three months severance. The lawsuit filed in a San Francisco federal court this week alleges that … 57% of female employees were laid off on Nov. 4, compared to 47% of male employees … . The gap is even greater for women in engineering-related roles — 63% were laid off, compared to 48% of men with engineering roles … .” So, even though there is no proof of intent per se, are statistics enough to win the case?

If the lawsuit had been filed in the 11th Circuit, guidance would come from Equal Employment Opportunity Commission v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1273-74 (11th Cir. 2000) overruled on other grounds in Ash v. Tyson Foods, 546 U.S. 454 (2006). The 11th Circuit explained, “Under Title VII of the Civil Rights Act of 1964, an employer may be found liable for unlawful sex discrimination under any one of three discrete theories: pattern and practice discrimination, disparate treatment discrimination, or disparate impact discrimination. (Italics added.) Both pattern and practice and disparate treatment claims require proof of discriminatory intent; disparate impact claims do not.” (Emphasis added.) Still, the court continued, “In order to show discriminatory intent, a plaintiff must demonstrate ‘that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,' not merely ‘in spite of,' its adverse effects on an identifiable group.' Id. at 1321 (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)). Therefore, in a disparate treatment case, the plaintiff bears the ultimate burden of proving that the employment action at issue was taken because of the plaintiff's sex.”

In further explaining the standard for disparate impact claims under Title VII claim and 42 U.S.C. § 2000e-2(k) and (m), the court noted on page 1274 the three required elements according to the statute:

1. “first, that there is a significant statistical disparity between the proportion of women in the available labor pool and the proportion of women hired”;
2. “second, that there is a specific, facially-neutral, employment practice which is the alleged cause of the disparity”;
3. “and finally, and most critically in this case, that a causal nexus exists between the specific employment practice identified and the statistical disparity shown.”

Generally, once the prima facie case is established for disparate impact discrimination, the burden of proof then shifts to the defendant. It must establish that the challenged practice serves a non-discriminatory and legitimate purpose. However, if the plaintiff can nonetheless show that this purpose could be served with an alternative non-discriminatory practice, the plaintiff may yet prevail. Thus, it remains to be seen how this lawsuit will fare, but it is certainly starting off on the right foot. We will see what develops here … stay tuned.