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A recent report by the National Partnership for Women and Families appears to have been based on statistics that do not support its conclusions. The study, Women at Work: Looking Behind the Numbers 40 Years After the Civil Rights Act of 1964, analyzed Equal Employment Opportunity Commission data on the number of charges of discrimination filed over a 10-year period. These data, the study concludes, “confirm the persistence of sex discrimination in the workplace.” The study also asserts that: “[t]he consistently high volume of sex-based charges makes clear that gender continues to affect women’s treatment in the workplace and the opportunities that are available to them.” The study finds that women “continue to face discrimination because they are, or might become, pregnant.” In addition, the study asserts that the data on charges of retaliation filed by women “rais[e] questions about whether women are targeted more for retaliatory action by employers for complaining about discrimination.” The study also drew conclusions from the data relating to charges of sexual harassment, claiming that such data shows that “sexual harassment remains a significant problem for all women workers.” Finally, the study claims that the data on sex discrimination charges filed “confirms the persistence of sex discrimination in the workplace.” Applying the wrong facts These conclusions misuse these data. That is, they conflate complaints that have been filed but not yet proven with proven cases of discrimination. Just as Title VII itself was long ago held to prohibit employers from screening out applicants for employment on the basis of their records of past arrests-as opposed to convictions for offenses relevant to the job applied for-the total number of charges filed in any particular category is not a good proxy for proven discrimination. More useful are some statistics compiled by the U.S. Department of Justice’s Bureau of Justice Statistics. Those data show that the total number of civil rights complaints, including complaints of employment discrimination, filed in federal courts has indeed steadily risen from just less than 7,000 private-employment discrimination complaints per year in 1990 to more than 21,500 such complaints in 1998. But the percentage of cases that have gone all the way to judgment-that is, a final order in favor of either the plaintiff or defendant-has declined from 34.4% of all cases filed in a single year to 29.2% of all cases filed in a single year, while the percentage of plaintiffs who won their cases at trial increased from 24% to 36%. Most relevant, however, is that although there were some 38,000 discrimination complaints of all kinds filed in 1998, of which the vast majority are employment discrimination, there were only 585 judgments for the plaintiff; in other words, instances of proven discrimination. (A significant number of complaints filed in 1998 were still pending at the end of the year and a number of the judgments came in cases filed before 1998. Unfortunately, the Bureau of Justice Statistics did not break down any of the data by type of alleged discrimination such as race, sex or national origin.) Many cases, of course, are settled, either through mediation or negotiation at the administrative stage or in court before final judgment. But there may be many reasons parties settle cases, and to automatically reach the conclusion that the settlement of such a case represents a demonstrated instance of discrimination is not warranted. It’s worth noting that the 1998 data were updated by the Bureau of Justice Statistics in 2000; those updated data show that, after rising steadily from 1990 to 1997, the number of employment-discrimination complaints has actually been falling in the last three years for which data are available, 1998 to 2000, to a total of 40,908 complaints in 2000. The total number of plaintiffs winning their cases in the federal district courts has also fallen, from 585 in 1998 to 545 in 2000, while the percentage of winning complaints out of all complaints that went to trial (either by jury or by the court), rose slightly, from 29.9% in 1998 to 33% in 2000. The crucial point here is that, regardless of the age of the data, statistics on the number of charges filed tells one little about the prevalence of discrimination in the American workplace, in contrast to data on the number of employment-discrimination cases that are actually won. To be sure, race, sex and ethnic discrimination are still significant problems. But before concluding that women (or any group) suffer from persistent discrimination at the same level, or are suffering from more discrimination of certain kinds, than in the past on the ground that they have filed more complaints, a more careful analysis of data actually proving those assertions is required. David A. Drachsler is a member of the Virginia Council on Human Rights and is a past chair of the Alexandria Human Rights Commission. He is a member of the board of directors of the American Civil Liberties Union of Virginia.

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