This phrase, popularized by Mark Twain -- who attributed it to a British Prime Minister -- can be used to describe both the positive and negative power of numbers to illustrate a point. Recently, it gained new meaning in the context of claims of racial discrimination by New York City in hiring of firefighters. In this case, the statistics did not mean the city's explanation was a lie. United States v. City of New York, No. 11-5113 (2d Cir. May 14, 2013).

This recent decision is the latest installment in a saga that started with an EEOC charge in 2002. The NYFD has less than 4% black firefighters, even though the city itself is about 25% black. Other city agencies, such as police, corrections, and sanitation, have much larger percentages of blacks in the workforce. The United States, along with a group representing black applicants, filed a lawsuit claiming the city engaged in a "pattern or practice" of discrimination with respect to hiring of black firefighters.

They attacked the city's use of entrance examinations in the hiring process for firefighters, because statistics showed they had dramatically lower pass rates for blacks than whites. Using a commonly accepted legal theory, they claimed using the exams resulted in a racially disparate impact on the black applicants, and that the exams were not "job related and consistent with business necessity." In addition, they claimed the city used the exams to intentionally discriminate against blacks.

The city could not dispute what the statistics showed, but the city provided evidence that it had tried to construct a legitimate exam, and that it had made special attempts to recruit black applicants. Without holding a trial, the district court rejected as "incredible" the city's explanation, and found that the statistics established claims for both disparate impact and intentional discrimination. The district court also entered a broad injunction against the city, which then appealed the finding of intentional discrimination and aspects of the injunction which were based on the finding of intentional discrimination.

The Second Circuit agreed with the city that the district court made a mistake by requiring the city to disprove the statistics before trial, and by evaluating the credibility of the city's explanation. At the pretrial stage, the city only had to provide evidence that would rebut the presumption created by the statistics. Because the city did so, a trial was necessary before the district court could determine whether there was liability. Because the district court judge improperly made credibility findings, the Second Circuit ordered a different judge to conduct the liability trial.