ABSTRACT
In 2011, the Supreme Court in Wal-Mart Stores, Inc. v. Dukes enunciated standards for plaintiffs’ statistical analyses that elevated the showing necessary to certify proposed classes in employment discrimination cases. Even before then, many courts had been increasing the requirements for plaintiffs’ statistical analyses, both at the class certification stage and on the merits. During the past 15 years, courts frequently have concluded that, even though plaintiffs have been presenting increasingly sophisticated expert reports, they have not offered sufficient statistical evidence to justify certification of proposed classes in employment discrimination cases or to prove that an employer has engaged in a pattern or practice of intentional discrimination or maintained practices that had a disparate impact on members of a protected group.
