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EEOC v. SEARS, ROEBUCK & CO. 839 F.2d 302 (7th Cir., 1988) HARLINGTON WOOD,Jr., CircuitJudge. These appeals [to the United States Court of Appeals, Seventh Circuit] are the outgrowth of protracted litigation stemming from an EEOC commissioner's charge filed against Sears, Roebuck & Company. [T] he EEOC sought to prove that Sears engaged in a nationwide pattern or practice of discrimination against women from March 3, 1973, to December 31, 1980, by failing to hire and promote females into commission sales positions on the same basis as males and by paying female checklist management employees less than similarly situated male employees. The district court on January 31, 1986, held for Sears on all claims. [The EEOC here appeals the district courtjudgment .] The district court in this case made a multitude of factual findings. Some of those findings rested on determinations of the credibility ofvarious witnesses, and some were based on the district court's evaluation of statistical evidence. We accord [considerable ] deference to the district court's findings based on evaluations of those types of evidence.... We must also defer to the district court to a certain extent regarding the court's factual findings based on statistical evidence. [T]he primary statistical experts for each side-Dr. Bernard R. Siskin for the EEOC and Dr. Joan G. Haworth for Sears ... together produced 5,275 pages of trial testimony. Thejudge specifically stated regarding this testimony that "[t] he credibility of statistical experts and the weight to be given their testimony were ... of great importance." Sears II, 628 F.Supp. at 1279 & n.2. [The court also heard testimony of other expert witnesses, including historians Rosalind Rosenberg and Alice Kessler-Harris. Ed.] B, Absence ofIndividual Victim Testimony Regarding all major claims at issue-hiring, promotion and compensation-the district court found that EEOC's failure to present testimony ofany \\itnesses who claimed Copyrighted Material 585 586 I EMPLOYMENT that they had been victims of discrimination by Sears confirmed the weaknesses of the EEOC's statistical evidence. The EEOC, conceding it did not present any witnesses who testified to individual acts of discrimination,S argues that the district court gave undue weight to the absence of individual victim testimony We believe the district court accorded this lack of evidence the proper weight. . The district court properly recognized the value of anecdotal evidence when it determined that lack of individual victim testimony reinforced its conclusions regarding the deficiencies in the EEOC's statistical evidence.... In this case the district court considered the lack of anecdotal evidence only after finding there were major problems with the EEOC's labor pool and determining that the EEOC's statistical evidence was severely flawed.... When experts disagree, as they did here, the court may need the help of live witnesses to relate their actual experiences. The EEOC's reasons for not presenting such individual testimony are not satisfYing . The EEOC argues that such evidence would be "inappropriate" because "where 47,000 hires and promotions were at issue ... it would have been impossible to present enough individual demonstrations [sic] of discrimination to meaningfully reflect on the statistics." We do not agree that examples of individual instances of discrimination must be numerous to be meaningful. Even a few examples would have helped bring "cold numbers convincingly to life." International Brotherhood ofTeamsters v. United States, 431 U.S. 324, 339 (1977). Furthermore, we agree with the district judge that considering the ten-year length of the lawsuit and the amount of investigation by the EEOC and information passed by Sears to the EEOC, it is difficult to see how the EEOC could fail to "identifY at least some members of the alleged huge class ofvictims it purports to represent." Sears 11,628 F.Supp. at 1325 & n.82. The EEOC also argues that an individual applicant would not know if she had been discriminated against. While this speculative argument may be more apt for the hiring situation, in which an applicant may not know whether there was a vacancy or the qualifications of other persons who were hired, we agree with the district judge that in the area of promotions and compensation at least, the number of Title VII suits filed by individuals against employers in general "seems to fairly refute EEOC's contention." Id. ... C. Hiring The district judge found a plethora of problems in the statistical analyses that the EEOC had offered to support the claim that Sears discriminated against women in hiring into commission sales positions from 1973 to 1980. Before addressing...

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