On July 10, 2012, the US Court of Appeals for the Second Circuit issued its opinion in Chin v. Port Authority.

The plaintiffs were 11 Asian-American police officers who worked for the Port Authority of New York and New Jersey. They alleged that the Port Authority violated Title VII by failing to promote them on the basis of their race. The jury found the Port Authority liable for discrimination against seven of the plaintiffs.

On appeal, the Second Circuit remanded for a new trial on damages for all seven plaintiffs. Among other things, the Second Circuit held that the district court erred in submitting a pattern-or-practice instruction to the jury in a nonclass, private action.

The pattern or practice theory of liability is a burden-shifting framework that originated in the class action context. The Supreme Court in International Brotherhood of Teamsters v. United States allowed it to be used in pattern-or-practice discrimination claims for injunctive relief brought by the US government under Title VII.

In Chin, the jury instruction provided by the district court stated that each plaintiff was required to prove, by a preponderance of the evidence, that the employer discriminated against him as part of a pattern or practice. The district court erred in submitting this element of proof to the jury as a basis for liability.

In disparate treatment cases involving nonclass, private plaintiffs, the ultimate burden of proof remains with the plaintiff, who must prove each element of his claim. The pattern-or-practice method of proof would allow nonclass, private plaintiffs who have shown a pattern or practice of discrimination to shift the burden of proof to employers, who would have to prove they did not discriminate against the plaintiff. Therefore, the pattern or practice method of proof is not an independent and distinct method of liability available to nonclass, private plaintiffs.

All other federal Circuit Courts of Appeal that have addressed this issue have held that nonclass, private plaintiffs may not use the pattern-or-practice method of proof, including the Fourth, Fifth, Sixth, Seventh, Tenth and Eleventh Circuits, and the DC Circuit.

In Chin, however, the Second Circuit emphasized that evidence of a pattern or practice of discrimination, in the ordinary sense of the term, rather than the technical method of proof, remains relevant to individual disparate treatment and disparate impact claims.