in addition to the statistics, to demonstrate that "the disparity resulted from unlawful discriminatory animus" rather than chance. Id. at 96.
14. Plaintiffs can also present, as part of a prima facie case of discrimination, evidence showing that decisions made by an employer depend largely on subjective factors. Several courts have recognized that "subjective criteria may well serve as a veil of seeming legitimacy beyond which illegal discrimination is operating." Segar v. Smith, supra, 738 F.2d at 1276. See also, e.g., Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972) ("promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate supervisor are a ready mechanism for discrimination"); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1383 (4th Cir. 1972) ("the lack of objective guidelines for hiring and promotion . . . serve[s] to corroborate, not to rebut, the racial bias pictured by the statistical pattern of the company's work force").
15. An inference of discrimination can also be established by proof that an employer discriminated against women with respect to the factors upon which an employer relies in making employment decisions, such as evaluations and awards. Segar v. Smith, supra, 738 F.2d at 1283-1284. Thus, the establishment of a prima facie case of discrimination with respect to one aspect of employment can support an inference of discrimination in other aspects of employment. Id.
16. The cessation of or a decrease in discrimination during the period of liability does not relieve the employer of liability for discrimination which occurred during the appropriate time period. Teamsters, supra, 431 U.S. at 341-342, 97 S. Ct. at 1858; Donnell v. General Motors Corp., 576 F.2d 1292, 1295 n.3 (8th Cir. 1978); Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, 568 F.2d 558, 568 (8th Cir. 1977).
17. A prima facie case of disparate impact consists of evidence showing that an employment practice has a disparate adverse impact on a group protected by Title VII. See cases in Conclusion of Law 4 above.
18. Once a plaintiff has established a prima facie case of disparate treatment, the burden of production shifts to the employer to present evidence showing "a legitimate, non-discriminatory reason" for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207 (1981). However, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 253, 101 S. Ct. at 1093.
19. Once a plaintiff has established a prima facie case of disparate impact, the burden of persuasion shifts to the employer to show that the employment practice "bear[s] a demonstrable relationship to successful [job] performance" or is otherwise "job related." Griggs v. Duke Power Co., supra, 401 U.S. 424 at 431, 91 S. Ct. 849 at 853.
20. An employer can respond to a prima facie case of employment discrimination in two ways. First, the employer can attack the prima facie case directly by attempting to refute the plaintiff's claim that a disparity exists in the position of the plaintiff's class and the position of the other employees. As the court explained in Segar v. Smith, supra, 738 F.2d at 1268:
Challenging the accuracy or significance of plaintiffs' proof, a defendant seeks to show that the alleged disparity on which plaintiffs' case is bottomed does not exist. Such a defense can of course be raised against both a disparate treatment and a disparate impact claim. Typically the challenge will focus on the integrity of the plaintiffs' statistical methodology and the significance of the results shown. Often the defendant will supplement the critique with alternative statistical analyses tending to refute the plaintiffs' evidence of disparity.