suits was also the lead plaintiff in a suit challenging county employment practices. The racial
composition of the county shifted much more rapidly than the racial composition of county
employees. Plaintiffs presented statistics to show that blacks received disproportionately fewer
positions in higher levels of county government. Judge Harvey however found numerous flaws
in those statistics. Plaintiffs included racial disproportion in hiring prior to 1972 although Title
YE only applied prospectively. They did not break the jobs into separate categories, and did not
distinguish between jobs that were available for external bidding and those positions which were
open only to internal candidates. The Court found that a county policy that openings above entry
level should be filled internally if there were six qualified internal candidates was a valid
seniority system under §703(h). Therefore it could be used despite its effect in perpetuating any
prior discrimination in the work force.245 The defendant carefully separated the employment into
eight separate categories, analyzed internal and external job openings separately and used only
decisions after 1972. Defendant's statistics showed some racial differences, but the court found
the differences were not statistically significant.

Plaintiffs had better luck in a suit against A.T.& T. that alleged discrimination in layoffs
of black engineers. Although only 13% of the engineers were African-American, African-
Americans constituted 38% of those laid off in 1982. The district court found this made out a
prima facie showing of discrimination. The company argued that the appropriate pool for
statistical comparison was of persons hired in 1978, and there was no racial disproportion in
layoffs among that group. But layoffs were not based on seniority, and some individuals were
laid off who had come to the company in earlier years. Finally, the company argued that the job
performance ratings of the plaintiffs were lower than those workers who were retained. The
court responded that plaintiffs had raised a triable issue whether the subjective job evaluations
were themselves discriminatory. Thus the court denied defendant's motion for summary
judgment.246 Nevertheless, the decision still left the plaintiffs with the difficult burden of
persuading the trier of fact that the job evaluations were discriminatory.

In 1989, the Supreme Court decided Ward's Cove Packing Co. v. Atonio.247 The court
said in that case that the plaintiff is responsible for isolating and identifying the specific
employment practices that are allegedly responsible for any observed statistical disparities. It
said also that when the plaintiff does demonstrate a particular practice has a discriminatory
effect, the defendant has the burden of producing evidence of a business justification but the
burden of persuasion remains on the plaintiff.

Subsequently, the Fourth Circuit upheld a decision of the district court based on a
magistrate's report of no discrimination in a racial discrimination suit brought by a black and
hispanic secretary against the equal employment office of civil rights in the Food and Drug
Administration. Her claim for disparate impact was based on statistics that showed a GS-3
workforce consisting of 23% black and 5% hispanic workers contrasted with promotions to GS-4
at a rate of 16% black and no hispanic. The court rejected this claim on two grounds. First,
plaintiff failed to show which of the GS-3 workforce were qualified for promotion. Second,
plaintiff failed to show that the subjective element in the promotions had a racial impact.248

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