In Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995), the plaintiff attempted to prove the alleged discriminatory effect of the defendant's employment practices upon Native Americans through a witness who testified about the decedent's discharge and other discharges.
The plaintiff did not, however, present any statistical evidence comparing the discharge rate of the Native Americans to the general discharge rate of non-Native Americans.
That precise inquiry was critical to the plaintiff's case. 193 W. Va. at 489, 457 S.E.2d at 166.
The Court concluded in Barefoot that the plaintiff failed to meet her burden of establishing that the defendant's policy caused a disparate impact on a protected class.
The plaintiff had offered no statistical evidence comparing the protected class to the non-protected class. The Court explained that "there is no basis in the record, logic, or common experience to suggest that a rule requiring automatic discharge of employees for hitting a patient would adversely affect Native Americans.
In fact, it is so absurd that merely stating the contention gives cause to reject it." 193 W. Va. at 489, 457 S.E.2d at 166.