Examining People For the American Way’s Alito critique on anti-discrimination law:
http://bench.nationalreview.com/archives/082006.asp
Alito and Title VII
[Edward Whelan 11/07 03:09 PM]
Let?s take a closer look at the lead race case the Left is trying to use against Judge Alito, Bray v. Marriott Hotels, 110 F.3d 396 (3rd Cir. 1997)( US 3rd Circuit Opinions and Cases | FindLaw ). That case is the first one mentioned in the “Racial Discrimination” section of People For the (Un)American Way?s attack on Alito ( http://media.pfaw.org/stc/AlitoPreliminary.pdf ), and it occupied center stage in last week’s Washington Post article on Alito’s civil-rights decisions ( http://www.washingtonpost.com/wp-dyn/content/article/2005/11/02/AR2005110202724.html ).
Bray, an African-American female and a Marriott worker, had applied for promotion to a particular position, as had seven to nine other hotel employees. Marriott instead offered the position to Riehle, a white female. Bray sued under Title VII, claiming that she had been denied the promotion because of her race.
Under existing case law, a Title VII plaintiff must carry the initial burden of establishing a “prima facie” case ? a rebuttable presumption ? of unlawful discrimination. That burden is not substantial and does not require showing any actual evidence of discrimination. On her claim for failure to promote, for example, Bray had to show that she (1) belonged to a protected category (in her case, that she was African-American), (2) applied for and was qualified for a job in an available position, and (3) did not receive the job.
Once this prima facie case is established, the burden then shifts to the employer to demonstrate that there was a nondiscriminatory reason for the job decision. If the employer satisfies this burden, then, under Third Circuit case law, the plaintiff had to submit evidence that either (1) casts sufficient doubt on the reasons offered by the employer so that a jury could reasonably conclude that each reason was a fabrication (“Prong One”), or (2) allows the jury to infer that discrimination was more likely than not a motivating or determinative cause of the decision (“Prong Two”).
Marriott offered as its reason for selecting Riehle over Bray its judgment that Riehle was the best applicant for the position. As the panel majority points out, Marriott “pointed to a host of factors to support its contention,” including Riehle’s higher objective rating, her superior experience, and her participation in more seminars and training sessions. The district judge awarded summary judgment to Marriott.
The panel majority found that the facts were sufficiently in dispute that summary judgment in Marriott’s favor was improper. Judge Alito, in dissent, first made clear that he understood Bray on appeal to be challenging the district court’s ruling only on Prong One. He then explained (quoting Third Circuit case law) that Prong One “requires that plaintiff point to evidence from which a reasonable factfinder can ‘disbelieve the employer?s articulated reasons’” (and not merely disagree with them). In other words, Bray had to offer evidence from which a jury could infer that Marriott was not really trying to find the best qualified candidate or that Marriott did not honestly believe that Riehle was better qualified than Bray. And he explained in detail how the majority “has not come close to holding Bray to her burden under prong one.”
Alito further argued that evidence of unfairness in the selection process ? in Bray?s case, Marriott’s failure to follow its internal procedures ? that is not linked to discriminatory animus should not get a plaintiff beyond summary judgment, “so long as the employer’s proffered legitimate reason for the employment decision remains intact.”
In charging that Alito’s position "would immunize an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias? and would “eviscerate” Title VII, the majority completely misreads Alito’s dissent. In particular, it appears not to understand that Alito’s dissent relates entirely to Prong One ? and thus leaves a plaintiff entirely free, under Prong Two, to rebut the employer’s proffered reason by offering evidence from which a jury could infer that discrimination was more likely than not a motivating or determinative cause. PFAW’s assertion that Alito?’ dissent “made clear that he would have imposed an almost impossible evidentiary burden on victims of employment discrimination” similarly finds zero support in Alito’s opinion.
http://bench.nationalreview.com/archives/082028.asp
Alito and Title VII?Part 2
[Ed Whelan 11/08 05:37 AM]
The more one examines PFAW?s report ( http://media.pfaw.org/stc/AlitoPreliminary.pdf ) attacking Judge Alito, the more ridiculous it gets. The lead gender-discrimination case that PFAW features is Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3rd Cir. 1996) (en banc)( US 3rd Circuit Opinions and Cases | FindLaw ). PFAW falsely claims that if Alito?s position were “adopted more broadly[,] it would make it much more difficult for victims of discrimination to get to court and to prove their case.” As it happens, Alito’s position has been adopted more broadly: In 2000, a unanimous Supreme Court, in an opinion by Justice O’Connor, adopted Alito’s position.
In Sheridan, the 10-member majority concluded that an employer is never entitled to summary judgment on a Title VII employment-discrimination claim when the plaintiff has made out a prima facie case and offered evidence sufficient to support a finding that the employer’s proffered nondiscriminatory explanation was pretextual. Alito, in dissent, noted that the majority had failed to acknowledge that the Fifth Circuit (by a 16-1 en banc vote) and the First and Eleventh Circuits had rejected the majority?s position.
Alito agreed that an award of summary judgment is usually improper where there is sufficient evidence to show that the employer’s proffered explanation is pretextual. But, in an extended scholarly explanation, he rejected the majority’s blanket conclusion that summary judgment would always be improper. Here’s his powerful example to which the majority, tellingly, offers no response:
[i]A man with a disability applies for a promotion, but the promotion is given to a woman without a disability.? The plaintiff establishes a prima facie case of gender discrimination by showing that he is a man, he was qualified for the job, he applied, but it was given to a woman. There is no other evidence of gender discrimination against men; indeed, there is evidence that the decisionmaker was a man and that the great majority of the employees in the job category at issue were men. The employer says that the woman was chosen because her qualifications were better, but the plaintiff shows that this explanation is full of holes. In addition and most important, there is strong, direct evidence that the decisionmaker was biased against the plaintiff because of his disability. Among other things, there is testimony that, when the decisionmaker learned that the plaintiff had applied for the promotion, the decisionmaker made insulting and derogatory remarks about the plaintiff's disability.
Is there enough evidence in this case to convince a rational trier of fact that the promotion decision was based on gender discrimination? I think not, and if I am right, then the majority's blanket test is disproven.{/i]
In 2000, in Reeves v. Sanderson Plumbing Products, Inc.( REEVES v. SANDERSON PLUMBING PRODUCTS, INC. | FindLaw ), the Supreme Court unanimously agreed with Alito?s position. In the words of Justice O?Connor?s opinion for the Court:
[i][A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.[/i]
Contrary to PFAW, the position that Alito and the unanimous Supreme Court have adopted makes it easier, not harder, for genuine victims of discrimination “to get to court and to prove their case,” as it enables the courts to dispose more efficiently of meritless claims that would otherwise impede the courts from addressing meritorious claims.
