In USA v. City of New York, the key litigated issue was what showing an employer must make to satisfy its burden of production in a pattern-or-practice case. The US Court of Appeals for the Second Circuit also considered whether:

In May 2007, the US brought suit in the US District Court for the Eastern District of New York against the City of New York challenging two Fire Department of the City of New York (FDNY) employment procedures for screening and selecting entry-level firefighters as having a disparate impact on black and Hispanic applicants in violation of Title VII. In 2007, the Vulcan Society Inc. (an organization of black firefighters) intervened along with several named firefighters. The Intervenors' complaint added the FDNY, the New York City Department of Citywide Administrative Services, Mayor Bloomberg and the New York Fire Commissioner at the time, Scoppetta. The Intervenors claimed disparate impact and also added a claim of disparate treatment alleging that the defendants' use of the challenged employment procedures constituted intentional discrimination against black applicants.

After the district court bifurcated the case into separate liability and relief phases, the US and Intervenors moved for partial summary judgment on the disparate impact claim. The district court certified a class consisting of black applicants for the position of entry-level firefighters. On July 22, 2009, the district court granted the motion for summary judgment on the disparate impact claim.

On September 18, 2009, the City of New York moved to dismiss the Intervenors' claim of disparate treatment. The Intervenors subsequently filed a motion for partial summary judgment on the discriminatory treatment claim. On January 13, 2010, the district court granted the Intervenors' motion on their disparate treatment claim after finding the City of New York did not adequately rebut statistical evidence showing few minority firefighters were hired.

The City of New York, Mayor Bloomberg and former Fire Commissioner Scoppetta appealed from the December 8, 2011 order of the district court issuing an injunction against the City of New York with respect to the hiring of entry-level firefighters. The appeal also sought review of the January 13, 2010 order granting the Intervenors summary judgment on their disparate treatment claim. The Intervenors cross-appealed from the February 1, 2012 partial final judgment dismissing the claims against Mayor Bloomberg and former Fire Commissioner Scoppetta. The appeals were consolidated. The City of New York did not challenge the grant of summary judgment on the disparate impact claim.

On May 14, 2013, the Second Circuit issued an opinion vacating the district court's grant of summary judgment in favor of the Intervenors.

The Second Circuit noted that although the Intervenors had not explicitly asserted a pattern-or-practice claim, they were permitted to do so because they sought and were granted class action status, and alleged not only the disparate impact of screening exams but also a long-standing pattern of discrimination in hiring firefighters.

Like with an individual claim, once a plaintiff in a pattern-or-practice case demonstrates its prima facie case of discrimination, the burden shifts to the employer. The employer meets its burden by demonstrating the plaintiff's proof is either inaccurate or insignificant (Int'l Brotherhood of Teamsters v. US).

In considering the key issue of what showing an employer must make to satisfy its burden of production, the Second Circuit looked to the language in Teamsters, which the court felt raised a question as to whether the employer's rebuttal evidence must be directed at the statistics that often constitute the prima facie case or simply at the rebuttable presumption of discrimination that arises from the statistics. According to the Second Circuit, it is always open to the defendant to meet its burden of production by presenting a direct attack on the statistics relied on to constitute a prima facie case, but a defendant may also rebut the inference of a discriminatory intent by accepting a plaintiff's statistics and producing non-statistical evidence to show it lacked discriminatory intent.

The Second Circuit reasoned that an employer may produce any evidence that is relevant to rebutting the inference of discrimination to a prima facie showing of discrimination including:

In this case, the Second Circuit found the defendants had rebutted the inference of intentional discrimination by showing, in part:

According to the Second Circuit, the City of New York provided a sufficient rebuttal to the Intervenor's prima facie case. As a result, the district court's grant of summary judgment was in error and should be vacated. The Second Circuit also:

Circuit Judge Pooler wrote a dissenting opinion disagreeing with the majority's assessment of the legal standard to apply in a pattern-or-practice case of discrimination. Judge Pooler argued that the standard employed by the majority conflates two distinct tests, and consequently allows the City of New York to meet its burden without contesting the plaintiff's evidence.

Employers in the Second Circuit can rebut a prima facie case of pattern-or-practice discriminatory treatment by demonstrating affirmative actions they took, not just by refuting the plaintiff's empirical data.