“Pattern or Practice” Discrimination Theory Restricted

by Ted Olsen

Based on a strategy similar to the presentation of "me, too" evidence, discussed above, plaintiffs in employment discrimination cases often claim that the defendant employer engages in a "pattern or practice" of discrimination. This theory is often advanced in addition to "disparate treatment" and "disparate impact" claims. Often, a plaintiff tries to mask weaknesses in his or her individual claims by asserting that the employer engages in a "pattern or practice" of discrimination against others in the same protected class.

A recurring legal question is whether an individual plaintiff may assert a "pattern or practice" discrimination claim, when the case has not been filed as a class action. In Goldsmith v. Bagby Elevator Co., Inc., Case No. 06-14440, --- F.3d --- (11^th Cir., Jan. 17, 2008), the Eleventh Circuit ruled that a plaintiff who has not filed a class action may not pursue a "pattern or practice" claim of discrimination.

This decision is not only helpful to employers, it gives clear directions to employers who face a "pattern or practice" claim. When a court complaint contains "pattern or practice" allegations but no class action allegations, the Goldsmith decision admonished, the employer should move for a more definite statement, to force the plaintiff to state clearly whether or not the case is being brought as a class action. If the plaintiff clarifies that the case is being filed on behalf of a class, the Goldsmith decision says, the plaintiff should be required to move promptly for class certification. If the plaintiff says the case is not a class action, the "pattern or practice" allegations should be stricken from the complaint and the plaintiff should not be permitted to pursue such a theory.

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

	Contact Us Services Attorneys News and Events Publications About the Firm Diversity Careers Events and Registration Speaking Engagements Press Releases Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff News and Events Home > News and Events > View “Pattern or Practice” Discrimination Theory Restricted by Ted Olsen Based on a strategy similar to the presentation of "me, too" evidence, discussed above, plaintiffs in employment discrimination cases often claim that the defendant employer engages in a "pattern or practice" of discrimination. This theory is often advanced in addition to "disparate treatment" and "disparate impact" claims. Often, a plaintiff tries to mask weaknesses in his or her individual claims by asserting that the employer engages in a "pattern or practice" of discrimination against others in the same protected class. A recurring legal question is whether an individual plaintiff may assert a "pattern or practice" discrimination claim, when the case has not been filed as a class action. In Goldsmith v. Bagby Elevator Co., Inc., Case No. 06-14440, --- F.3d --- (11^th Cir., Jan. 17, 2008), the Eleventh Circuit ruled that a plaintiff who has not filed a class action may not pursue a "pattern or practice" claim of discrimination. This decision is not only helpful to employers, it gives clear directions to employers who face a "pattern or practice" claim. When a court complaint contains "pattern or practice" allegations but no class action allegations, the Goldsmith decision admonished, the employer should move for a more definite statement, to force the plaintiff to state clearly whether or not the case is being brought as a class action. If the plaintiff clarifies that the case is being filed on behalf of a class, the Goldsmith decision says, the plaintiff should be required to move promptly for class certification. If the plaintiff says the case is not a class action, the "pattern or practice" allegations should be stricken from the complaint and the plaintiff should not be permitted to pursue such a theory. Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2008 Sherman & Howard L.L.C. March 3, 2008 Copyright 2000-2008 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use