[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."
The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an affirmative action policy for female public works employees. Last year, amici in support of the respondents in Grutter v. Bollinger imported Justice O'Connor's reasoning into the domain of admissions decisions at elite professional schools.
As evocative as the phrase may be, the precise doctrinal meaning of the "inexorable zero" has remained elusive. Allegations including the exclusion of women as referees in the National Basketball Association (NBA), racial segregation at a Coca-Cola bottling plant, and the reputation of a famous Miami Beach restaurant for hiring only men as servers have in recent years continued to inspire federal trial courts to invoke the inexorable zero, citing Teamsters. They have done so not only in Title VII systemic disparate treatment or "pattern and practice" cases such as Teamsters, but also in cases involving disparate impact, individual disparate treatment, and other employment discrimination statutes.
Bert I. Huang,
The "Inexorable Zero",
Harv. L. Rev.
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