exactness, they merely serve as guideposts to assist in singling out employment practices for which it is appropriate to ask employers to offer justifications. The precise point at which statistical data casts sufficient suspicion on an employment practice to require explanation by the employer is not fixed by any rule of thumb. It will vary depending on the facts and circumstances of each particular case. In all instances, however, the statistical evidence offered to show prima facie discriminatory effect must be persuasive. This is particularly so where, as here, statistics are advanced to support the granting of extraordinary relief in the form of a preliminary injunction. This is also the case where, as here, the employment practice being challenged is related to the delivery of critical medical care to gravely ill patients.
To be persuasive, statistical evidence must rest on data large enough to mirror the reality of the employment situation. If, on the one hand, the courts were to ignore broadly based statistical data, that would be manifestly unfair to Title VII complainants. But if, on the other hand, the courts were to rely heavily on statistics drawn from narrow samples, that would inevitably upset legitimate employment practices for reasons of appearance rather than substance. The courts must be astute to safeguard both of these conflicting interests. See generally Note, Employment Discrimination: Statistics and Preferences Under Title VII, 59 Va. L. Rev. 462, 466 (1973).
In the instant matter, the Court is convinced that the data offered by plaintiffs represents too slender a reed on which to rest the weighty remedy of preliminary relief. To begin with, the entire sample on which plaintiffs base their prima facie showing consists of a total of 35 employees. With so meager a sample, if just a handful of test results had turned out differently, the comparative percentages of black (44%) and white (100%) success on the exam would have been correspondingly, and substantially, different. In the Court's estimation, "Such small numbers are insufficient to support any conclusion as to whether the rule has a discriminatory effect." Robinson, supra, 514 F.2d at 1273.
Chicano Police Officer's Association v. Stover, 526 F.2d 431 (10th Cir. 1975) is not to the contrary. Plaintiffs rely on Stover for the principle that "The smallness of the sample should not be grounds here for rejecting the proof." Id. at 439. But in Stover, in sharp numerical contrast to the instant case, the statistical evidence before the court reflected a sample many times greater and, hence, significantly more persuasive, than is present here. In light of this striking numerical disparity, Stover is plainly inapposite. Reliance on that case is similarly inappropriate in that there, unlike here, the challenged practice was a local test for which corroborating national statistics were not available.
In rejecting as insufficient the statistical evidence presented by plaintiffs in support of their application for preliminary relief, no view whatsoever is expressed concerning the adequacy of these statistics to support an ultimate finding of discriminatory effect when the case is later resolved on the merits. If, as was pointed out during the hearing in this matter, discovery produces supplemental data
that buttresses the evidence already presented, the Court will give this data whatever consideration it deserves. For present purposes, however, the Court finds that the evidence now before it does not warrant the conclusion that plaintiffs will likely succeed on the merits. Accordingly, plaintiffs' motion for preliminary relief must be denied.
It is so ordered.
John J. Sirica / United States District Judge