On August 5, 2010, the California Supreme Court issued a unanimous decision concerning the type of evidence a worker can rely upon to prove an employer discriminated against him or her. The Court’s decision concerns the so-called “stray remarks doctrine.”

Justice Sandra Day O’Connor coined the term in a 1989 U.S. Supreme Court decision, writing that “stray remarks” made by “non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process” are insufficient evidence of an employer’s discriminatory attitude. Without additional evidence of discrimination, she wrote, a gender discrimination claim can be and should be dismissed by the court before trial.

In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, the worker presented evidence that a partner of the firm told her to “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” and “wear jewelry” to improve her chances for partnership. Justice O’Connor concluded that though such “stray remarks” might constitute evidence of a discriminatory attitude in the workplace, they are not sufficient evidence of discrimination on their own. When combined with more direct kinds of evidence of discrimination, however, stray remarks evidence can tend to support a discrimination claim.

Since 1989, some federal courts have expanded the stay remarks doctrine substantially. In Hill v. Lockheed Martin, for example, the Fourth Circuit Court of Appeals ruled that remarks by non-decisionmakers that the worker was a “useless old lady” “who needed to retire” and was a “troubled old lady,” did not influence the decisional process directly and, therefore, were completely irrelevant to the worker’s discrimination claim.

In its August 5th decision, the California Supreme Court concluded that the wholesale rejection of evidence of stray remarks, as suggested by the Fourth Circuit, is improper. It explained that such evidence can tend to show discriminatory animus or attitudes within the workplace. Under California law, then, stray remarks are relevant and cannot be completely ignored by the trial courts in ruling on pre-trial motions for summary judgment.

While the California Supreme Court’s decision focuses on evidentiary issues and pretrial procedures, the importance of the decision for California workers is significant. Although a racial, sexual or age-based slur might not conclusively demonstrate employment discrimination, such stray remarks combined with other more direct evidence of discrimination (statistics, testimony, emails and the like) can be used to defeat a defendant’s motion for summary judgment before trial.

The California Supreme Court explained that “[T]he stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” Thus, stray remarks can constitute evidence of discriminatory animus. The Supreme Court of California found another federal appellate court’s position on the stray remarks doctrine persuasive. In Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, the Seventh Circuit Court of Appeals wrote: “If [the formal decision maker] acted as the conduit of [an employee‘s] prejudice – his cat‘s paw – the innocence of [the decision maker] would not spare the company from liability.”

Thus, for example, discriminatory comments by a worker capable of influencing the actual decisionmakers can provide admissible evidence of discrimination by the employer.

This is good news for workers in California who often find it difficult to unearth more direct evidence of discrimination. While the California Supreme Court ultimately concluded that, on their own, inappropriate stray remarks by non-decisionmakers do not prove discrimination, its decision will permit workers to present evidence of stray remarks in the context of other discriminatory practices in the workplace.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

The forced arbitration of claims arising out of statutory protections for consumers and employees has become a hot topic at the Kagan hearings. The parade of comments by Senators started even before the hearings began, with a written statement by Senator Leahy criticizing the Supreme Court’s 5-4 decision in Rent-a-Center v. Jackson, and similar remarks on the Senator floor by Senator Franken (video of which we’ve already posted here). The topic was raised again in Senator Whitehouse’s opening statement on Monday and in an extended colloquy between Franken and Kagan this morning.

In his statement, Leahy called the Rent-a-Center decision “a blow to our nation’s civil rights laws and the protections that American workers have long enjoyed under those laws.” He noted that “more than one hundred million Americans work under binding mandatory arbitration agreements” and that “most Americans are not even aware that they have waived their constitutional right to a jury trial when they accept a job to provide for their families.”

Congress worked for years on a bipartisan basis to pass laws to protect workers from race discrimination, gender discrimination and age discrimination.  . . . Rent-a-Center is unfortunately just the latest in a line of divisive and devastating Supreme Court decisions where five justices have, in effect, gutted those statutory protections. … Congress should now take a closer look at the way in which binding mandatory arbitration is creating a legal underground where American workers are left without protection.

There is no rule of law in arbitration. There are no juries or independent judges in the arbitration industry. There is no appellate review. There is no transparency. And as a result of today’s divisive ruling, there will likely be no justice for millions of American workers and their families.  The courthouse doors have simply been closed to them.  Today’s opinion also gives big business a disincentive to treat their employees fairly and will no doubt lead to virtually all companies requiring their employees to sign one-sided arbitration agreements as a condition of employment.

Senator Whitehouse’s opening statement at the Kagan hearings struck a similar chord:

Unfortunately, the conservative wing of the current Supreme Court has departed from [the Court's] great institutional traditions. Precedents, whether of old or recent vintage, have been discarded at a startling rate. Statutes passed by Congress have been tossed aside with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly. Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision — yet another 5-4 decision — created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Finally, Senator Franken this morning used the hearings as an opportunity to sharply critique not only the recent Rent-a-Center decision, but also the Court’s 2001 decision in Circuit City v. Adams, which rewrote the Federal Arbitration Act to include most employee claims.  The relevant portion of the transcript form this morning’s hearings is available after the jump.

Sen. Franken: I want to discuss something that is denying more and more working Americans that precious day in court, that fair shake, and that’s mandatory arbitration. Now, arbitration has its place. I’m talking about mandatory arbitration. Chances are if you have a cell phone or credit card or if you work, you’re likely to have signed a contract with a mandatory arbitration clause. These clauses basically say if we violate your rights, you can’t take us to court. You have to take it to an arbitrator. But then the fine print essentially says an arbitrator that we pay who depends on us for work and who makes decisions in secret. So a lot of people are denying their opportunity to come before the court.

Circuit City v. Adams

Unfortunately, we’ve seen a series of decisions from the Supreme Court that have made it even harder for people to get that fair shake, as you put it. In 2001 in a case called Circuit City, the Court was asked to decide whether workers’ employment, employment contracts could be subject to mandatory arbitration. This really should have been a no-brainer, because the Federal Arbitration Act of 1925, the law that says that arbitration agreements should be enforced — specifically exempts, quote, “contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.”

Organized labor had asked for this specific language to be included to make sure the act would not apply to workers’ employment contracts. In fact, then commerce secretary Herbert Hoover said during a Senate hearing, quote, “if the objection appears to be inclusion of workers’ contracts in the law’s scheme, it might well be amended by states but nothing herein contained shall apply to the contracts of seamen, railroad employees or any other class of workers engaged in interstate commerce.”

Secretary Hoover was saying that if congress wanted to make clear that the Federal Arbitration Act did not apply to employment contracts, Congress should put this language in the statute. So Congress put the language in the statute. But when Justice Kennedy wrote the majority opinion in circuit city, he ignored the history. He wrote, and I quote, “we need not assess the legislative history of the exclusion provision.” Let me repeat that. “We need not assess the legislative history of the exclusion provision.” And based on a strained reading of the law he decided that the exception only applied to workers in the transportation business. Not any class of workers.

This means that instead of all workers getting their day in court in Congress . . . like Congress clearly intended, only transportation workers would get it, and that excludes the vast majority of american workers. General Kagan, I really disagree with this case and the way the court ignored Congress’ intent. That why I was glad to hear your response to one of Senator Schumer’s questions about how the court should interpret statutes. You said that among other things, quote, I think a judge should look to the history of the statute in order to determine Congress’ will. General Kagan, we spent a lot of time in hearings and on the floor debating legislation. How much weight do you think a judge should give to the deliberations of congress and the reasons why we pass the law in the first place?

EK: Senator Franken, the most important thing in interpreting any statute, in fact, the only thing that matters is Congress’ intent. Congress gets to make the laws under Article One of the Constitution. And what the Court should be doing in applying those laws is trying to figure out what Congress meant and how Congress wanted the laws to be applied. That is the only thing that the Court should be doing. Now, sometimes that can be a difficult task. New situations come up. The statutory language is not clear how it applies to those new situations or sometimes congress might simply not have thought of particular situations. Language is by necessity an exact, and so there are going to be cases which –

Sen. Franken: Do you agree with Justice Kennedy, “we need not assess the legislative history” of something?

EK: I would say this. I would say where the text is clear, a court should go with the text. Where the the text clearly covers some situation, the court should do that. The court shouldn’t be writing law.

Sen. Franken: Should the court assess that and make an assessment there?

EK: I think if the text is clear, the court should not rewrite the law. But where the text is ambiguous, which often happens –

Sen. Franken: Wouldn’t you have to assess whether it is ambiguous?

EK: Yes.

Sen. Franken: What Justice Kennedy said doesn’t stand up to that, does that? Let us me move on on that. We in Congress, we want to make sure all of us intentions are clear so 75 years from now the Supreme Court doesn’t just ignore the purpose behind the laws we’re passing. How can we do that? How do we do that? How do we make it clear to future Justices?

EK: Well, the courts surely would be helped if Congress spoke as precisely and exactly and as comprehensively as it could in all situations. You know, there are some instances where the Court just has legitimate difficulty trying to figure out what congress intended and where judges all of whom agree what they should be doing is doing what Congress intended, have difficulty determining that or disagree about what that means. Certainly to the extent Congress can make its intentions clear in legislation and can specifically spell out how it intends for the law to operate, congress ought to do so. To the extent that the court gets something wrong with respect to a statute, and this has happened many times in recent years and in prior years as well. To the extent that the court gets something wrong, of course Congress can come back and change it and make clear that the court got it wrong and also use it as an opportunity even to make clear its intentions with respect to a general area of law.

Sen. Franken: Okay. It’s hard to do 78 years from now, but we’ll try. Circuit City was a Rehnquist court decision.

Rent-a-Center v. Jackson

Just last week the Roberts Court did something better to keep workers out of court and in arbitration. Rent-a-Center has 21,000 workers and hundreds of milions of dollars in annual profits. It forces its workers to sind a mandatory arbitration agreement as a condition of employment. Antonio Jackson, an African-American account manager in nevada had been working for Rent-a-Center for years, but he was frustrated because he watched his company pass him over for promotions again and again. Instead they promoted workers who had less experience and who weren’t black. Although Jackson signed an employment contract agreeing to arbitrate all employment claims, this seemed blatantly unfair and he sued Rent-a-Center.

But the company argued that only the arbitrator could decide whether the arbitration clause was unfair. Let me repeat that.  Rent-a-Center argued that only the arbrator could decide whether the arbitration clause was unfair. Last week the Roberts Court sided with Rent-a-Center.

Talk about not getting your day in court. Now you can’t get your day in court to get your day in court. Now, general Kagan, I know I probably can’t ask you whether I can ask you, but you won’t answer, whether this case was correctly decided, but I would like to ask you still agree with what you said yesterday to Senator Kyl, that one of the glorious things about courts is they provide a level playing field in all circumstances, and that we need to make sure that every single person gets the opportunity to come before the court and gets the opportunity to make his best case and gets a fair shake.

EK: Well, I do agree with that very strongly, Senator Franken. If I might just return to this question of statutory interpretation that you started off with, because I did want to make clear that when a text is ambiguous, which you know frequently happens, which frequently happens, then I think the job of the courts is to use whatever evidence is at hand to understand Congress’ intent. And that includes exploration of Congress’ purpose by way of looking at the structure of the statute, by way of looking at the title of the statute, by way of looking at when the statute was enacted and in what circumstances and by way of looking at legislative history. Now, I think the courts have to be careful about looking at legislative history and make sure that what they’re looking to is reliable, but courts shouldn’t at all exclude signs of congressional intent and should really search hard for congressional intent when the text of the statute itself is unclear.

Sen. Franken: Good. Then I think you and I agree that Justice Kennedy may have been in error when he said that — that the Court doesn’t have to assess the legislative history.

EK: Well, I suspect that — i don’t know the case very well. I suspect that Justice Kennedy may have meant he thought the text was clear, and therefore, the legislative history was not something that should appropriately be explored, but I’m just guessing on that.

Sen. Franken: Okay. I think you’re guessing wrong.

EK: Okay.

This article was originally posted on Consumer Law & Policy Blog

About The Author: Deepak Gupta is a staff attorney at Public Citizen Litigation Group, the litigating arm of the national, non-profit consumer advocacy organization Public Citizen. He also teaches a course in public interest law as an adjunct professor at Georgetown University Law Center, and he previously taught a course in appellate advocacy as an adjunct professor at the Washington College of Law at American University.

On May 5 and 6, House and Senate committees held back-to-back hearings on legislation to override a June 2009 Supreme Court decision that stripped older workers of vital protections against bias on which they had relied for over 40 years. In this ruling, which Justice Stevens in dissent characterized as “unabashed judicial law-making,” “irresponsible,” and in “utter disregard” of the Court’s own precedents and “Congressional intent,” a narrow 5-4 majority so weakened the 1967 Age Discrimination in Employment Act (ADEA), that employers are left with little incentive to comply. The case, Gross v. FBL Financial Services, illustrates the accuracy of President Obama’s recent observation that we “are now seeing a conservative jurisprudence” that is both “activist” and bent on gutting laws that, like the ADEA, were enacted to protect ordinary people.

The case arose out of circumstances all too familiar to older workers at all levels in our economy, especially in the hard times from which much of the nation has barely begun to recover. In 2003, Jack Gross, aged 54 and a 32-year employee of FBL Financial, was demoted from his position as claims administration director, and transferred to a newly created position with drastically reduced responsibilities. Gross sued, and at trial introduced “evidence suggesting that his reassignment was based at least in part on his age” (as stated by Justice Clarence Thomas writing for the majority). Gross’ employer responded with the claim that the reassignment was part of a “corporate restructuring.” The jury found for Gross and awarded him $46,945 in lost compensation, after receiving the judge’s instructions that they must rule for the employee if he proved by a preponderance of the evidence that “age was a motivating factor” in his demotion. “However,” the judge instructed, the jury must rule for the employer if the employer proves by the preponderance of the evidence that the employer would have demoted Gross “regardless of his age.” This instruction tracked settled law. But the Supreme Court majority changed the law, and held that Gross and others in his situation needed to show that age was the “but for” cause of their adverse treatment, and that evidence that age was a motivating factor would not shift the burden of proof to the employer to prove that the adverse action would have occurred regardless of the employee’s age.

After the Supreme Court bounced him back to square one, Mr. Gross testified before Congress that the conservative Justices had “hijacked” his case to make an ideological point. His view cannot be dismissed as sour grapes. On the contrary, this 5-4 reversal of the jury verdict in Mr. Gross’ favor creates a veritable perfect storm for older workers. Numerous surveys show that the current financial crisis has forced older workers at all economic levels to shelve plans for retirement, and attempt to stay in, or re-enter the job market. Or hope to. When recession strikes, employers often target veteran employees in reductions in force, and disfavor older candidates for whatever new positions they may need to fill. Age discrimination claims submitted to the Equal Employment Opportunity Commission spiked nearly 30 percent in June 2009 compared with the same month a year earlier.

For these claimants, the Supreme Court’s decision offers a Catch-22. The aptly named decision will largely nullify the ADEA and guarantees that a vast proportion of age bias complaints will fail, whatever their merit. As Senate Health, Education, Labor, & Pensions Committee Chair Tom Harkin (who blogged for ACSblog here) observed in his committee’s March 6 hearing on the bill, in real-world workplaces, employers create paper trails purporting to justify adverse actions on legitimate business-related grounds. In such circumstances, it will rarely be possible to prove that age was the “but-for” cause (a standard some courts have interpreted to mean “exclusive”), rather than a “motivating” factor. Virtually any evidence of any other factors, whether business-related or not, suffices to throw a legitimate age discrimination victim out of court. Employee-side lawyers will know that, so they will rarely waste their time and resources to bring cases when age bias victims come to them for help. Business lawyers will also know that, and will counsel clients that they have nothing to fear if they pay lip-service to the ADEA but ignore it in practice.

As noted above, few cases confirm more clearly than Gross v. FBL President Obama’s observation that recent conservative judicial activism “ignores the will of Congress” and “democratic processes.” “Not only,” Justice Stevens wrote in his impassioned dissent, did the Court’s own precedents reject the “but-for” standard, but “so did Congress when it amended Title VII (of the 1964 Civil Rights Act) in 1991.” Moreover, the majority’s “far-reaching” new rule answered a question completely different from the one the parties had raised with the Court or the courts below and which the Court “granted certiorari to decide.”

When issued a bit less than a year ago, the Gross decision provoked indignant opposition on Capitol Hill, and on October 6, 2009, Senators Harkin and Patrick Leahy and Representative George Miller, simultaneously introduced identical corrective bills, entitled the Protecting Older Workers Against Discrimination Act. The fact that legislative hearings have now occurred on both sides of the Capitol indicates that Congress may well restore equal opportunity guarantees for older workers – just as it did in February 2009, when it overturned the infamous 2007 5-4 Ledbetter v. Goodyear decision that undermined equal pay opportunity safeguards in Title VII. Only through such prompt action can Congress prevent the further metastasizing of this threat to the economic security of older Americans, and all Americans.

*This post originally appeared in American Constitution Society on May 7, 2010. Reprinted with permission.

About the Authors:

Simon Lazarus is Public Policy Counsel for the National Senior Citizens Law Center, where he is responsible for the Washington DC advocacy effort of NSCLC’s Federal Rights Project. He writes frequently on the politics of judicial nominations, on Congressional authority to protect ordinary Americans’ basic needs, and on the ability of individuals to enforce rights under federal and state law.  His articles have appeared in the Atlantic, the Washington Post, The American Prospect, Roll Call, and Huffington Post.  His DePaul Law Review article, “Federalism R.I.P.? Did the Roberts Hearings Junk the Rehnquist Court’s Federalism Revolution?,” expanded an issue brief he authored for the American Constitution Society.  His ACS issue brief, “Mandatory Health Insurance: Is it Constitutional?,” has been widely referenced in the current debate.  His Atlantic article, “The Most Dangerous Branch?”, was republished in two anthologies, The Best American Political Writing 2003, Royce Flippin, ed., and Principles and Practice of American Politics: Classic and Contemporary Readings, 2d ed., Samuel Kernell and Steven S. Smith, eds. (CQ Press 2003).   Si has served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff (1977-81), as a partner in Powell, Goldstein, Frazer, and Murphy LLP (1981-2002), and as Senior Counsel to Sidley Austin LLP (2002-2006). A Trustee of the Center for Law and Social Policy, he graduated from Yale Law School, where he was Note & Comment Editor of the Yale Law Journal.

Sergio Eduardo Munoz is a staff attorney for the Federal Rights Project. Most recently, he was the Public Policy Director of a health reform organization where he coordinated advocacy for the amelioration of health difficulties facing adolescents of color and limited income. This position built upon Sergio’s work directing Latino outreach in the greater Denver area for federal Democratic candidates in the successful 2008 elections. He specialized in bringing first-time voters into the political process, preventing voter suppression, and laying the groundwork for a sustainable and diverse political majority. A graduate of Brown University and the University of Michigan Law School, he has completed legal fellowships at the ACLU of Michigan, the Center for Reproductive Rights, and the Pediatric Advocacy Initiative. Prior to starting law school, Sergio was a social worker for foster children with medical conditions and a civil rights and liberties investigator of police misconduct in New York City.

Age Discrimination Legislation Will Overturn Gross Decision

Last June, the Supreme Court issued the awful and controversial age discrimination opinion in the Gross v. FBL Financial Services case.

I wrote about the case at that time and predicted that it was just a matter of time until Congress fixed it with a bill that would overrule the decision and set the record straight on the fair standard of proof for age discrimination plaintiffs.

Last Tuesday, the Senate and House introduced legislation designed to do just that.

The bill — introduced as H.R. 3721 — and called the Protecting Older Workers Against Discrimation Act, will put age discrimination plaintiffs back where they were before the Gross decision.

The bill will apply to all cases pending on or after June 17, 2009,  the day before the Gross decision.

Senator Patrick Leahy, one of the authors of the bill had this to say (as reported in the New York Times):

What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored.

In Gross, the Court held that the Plaintiff, Jack Gross, was required to prove that age was the “but for” reason he was demoted from his job.

In other words, the plaintiff would have to prove that “but for” his age, he would not have been demoted (fired, hired, etc.).

Most interpret this as a new and more stringent requirement that age be the sole reason for the adverse employment action (though the case has conflicting language on that issue).

What’s fundamentally flawed about the Court’s interpretation of the federal age discrimination statute (ADEA) is that it’s not consistent with all  of the other comparable civil rights statutes.

Simply stated, it makes no sense for an age discrimination plaintiff to be treated differently, and more harshly, than a plaintiff in a race or gender discrimination case. The method of proof and standard of proof has been, and ought to be, the same.

In other discrimination cases a plaintiff must prove that the alleged discrimination was “a motivating factor,” not the sole reason, for the challenged adverse employment decision.

This bill establishes that age discrimination cases are to be interpreted by the same “motivating factor” standard of proof.

The bill also explicitly recognizes the difficulty of proving discrimination cases and makes clear that victims of any kind of prohibited discrimination can prove their cases with direct or circumstantial evidence.

According to Senator Tom Harkin, one of the co-sponsors of the bill — as reported in Workforce Management:

The Court invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination

This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.

It’s no secret that workers over 55 have been hit hard by the recession. According to the EEOC, 25,000 age discrimination cases were filed last year, a 30%increase from 2000.

The last thing these folks need is a more difficult standard of proof when age discrimination is at play.

Fortunately, Congress has the final say on what its legislation means and how it should be interpreted. That’s why it gets to say that all discrimination plaintiffs should be treated consistently by the courts.

Let’s hope that this important Congressional fix gets passed soon.

image:blog.prospect.org images1.wikia.nocookie.net

This article originally appeared in Employee Rights Post on October 15, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court’s Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

About the Author: Mike Zimmer is a law professor at Loyola University Chicago.  One of his main areas of concentration, which includes co-authoring an Aspen casebook, is employment discrimination. He graduated from Marquette Law School, clerked for Judge Fairchild on the 7th Circuit, worked at Foley & Lardner and have taught at a good number of law schools. Zimmer joined the Loyola faculty after 30 years at Seton Hall Law School.

This article originally appeared in Workplace Prof Blog on June 30, 2009. Re-printed with permission by the author.

Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it’s hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don’t want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that’s so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It’s a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

1. It decided an entirely different issue than the question accepted for review — one that was not properly presented or briefed.
2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here’s an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can’t be discriminated against  in his/her employment “because of ” his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act (”ADEA”) was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  “because of ” age.

The Supreme Court has interpreted the “because of” language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a “but for” standard which meant that the plaintiff in a Title VII case would have to prove that “but for” his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the “but for” standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a “motivating factor in the employment decision” in order to prove that he or she was discriminated against because of it.

Congress ratified the “motivating factor” interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

An unlawful employment practice is established when the complaining party demonstrates that race, color religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

What happened in the Gross case last week is that the majority resurrected the“but for” standard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the “but-for”cause of the employer’s adverse decision.

It’s important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it’s not been done before.

Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here’s a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It’s failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress’ intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.

The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the “but for” language — not the least of which is that it’s a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What’s Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times on Friday:

 Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases. 

‘It is even more troubling that these five justices decided to go further than the question presented to the court,’ said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.

“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination.”

Mr. Leahy said Thursday’s decision reminded him of the court’s “wrong-headed ruling in Ledbetter,” a reference to Lily Ledbetter, whose pursuit of equal pay to her male counterparts at Goodyear Tire & Rubber Co. was thrown out in 2007 because she filed the lawsuit after the expiry of a 180-day statute of limitations.

What’s the Practical Effect of the Decision?

• As far as the loss of getting a mixed motive instruction in an age discrimination case, most plaintiff’s lawyers don’t care. It’s too confusing to the jury. So until it’s fixed legislatively, it really doesn’t matter.

• Some management lawyers, like Daniel Schwartz in his Connecticut Employment Law Blog, have advised their clients to ignore the decision and I think that’s good advice.

• Most experienced employment lawyers know that the “but for” language will have little effect on a jury.

• Age discrimination plaintiffs will still have the opportunity, through the use of direct and circumstantial evidence, to prove that they were discriminated against because of their age — and this decision does not change that fact.

While some interpret the decision to  require proof that age was the sole reason for the discharge, I don’t think that’s clear at all from the language of the decision.

The majority opinion relies on a previous Supreme Court case, Hazen Paper Co. v. Biggens, and the language in it that says that “an age discrimination plaintiff can win if it proves that the discrimination played a (not the) role in the employer’s decision making process and had a (not the) determinative influence on the outcome.”

Plaintiffs in age discrimination cases can and will rely on that language to rebut the contention that a higher bar has been set. Justice Thomas also writes in a footnote that  the decision sets no “heightened evidentiary requirement for ADEA plaintiffs ” — so why not take him at his word.

In sum, I think it’s all academic and that the opinion will have little effect on the litigation or trial of age discrimination cases in the future. It will, however, make for a whole pile of briefing on what will shortly become a moot point.

The Bottom Line

The bottom line is that Congress has certainly never said that it should be harder to prove age discrimination than any other kind of prohibited discrimination and never intended that result.

It’s fundamentally unsound and intellectually dishonest to interpret the same words differently because one discrimination statute refers to race and sex and another refers to age. What’s more, it’s just totally confusing.

That’s why the Gross decision will, in my opinion, be gone in a flash.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

This article originally appeared in Employee Rights Post on June 22, 2009. Re-printed with permission by the author.

Images:  www.roadtransport.com and farm1.static.flickr.com

On May 27 Workplace Fairness interns Hannah Goitein, Jessica Haden, Shannon Lichtenberg, and I participated in a conference call with The Coalition for Constitutional Values. This national coalition of organizations represents millions of Americans from across the country who believe it is important that the American people be informed about the nomination of Judge Sonia Sotomayor to replace Justice David Souter. The coalition is co-chaired by the Leadership Conference on Civil Rights, Alliance for Justice, and People For the American Way.

Featured speakers on the call included Tina Tchen, White House office of public engagement director; Janet Murguia, National Council of La Raza president & CEO; Bill Yeomans, Alliance for Justice legal director; Marge Baker, People For the American Way director of public policy; Wade Henderson, Leadership Conference on Civil Rights president & CEO; and Ellen Buchman, Leadership Conference on Civil Rights vice president for field operations.

On the call, we discussed how Judge Sotomayor’s distinct and impressive qualifications make her an exemplary Supreme Court nominee to the nation’s high court. We reviewed the process from nomination to confirmation, and shared information about what you and your organization can do to get involved in the process.

Here are four things you can do right now to ensure an expedient and fair confirmation process and engage others in support of Sotomayor:

1)  Call Your Senators. Urge them to support an orderly and fair confirmation process of Judge Sonia Sotomayor to the U.S. Supreme Court:

http://www.civilrights.org/action_center/support_sotomayor_process.html

2)  Watch the “Justice” Ad and Go Viral. The Coalition for Constitutional Values has a new 30-second television ad to introduce Judge Sonia Sotomayor. The ad highlights her fair-minded approach to the law, which is grounded both in her eminent legal qualifications and her life experiences. Watch the ad, email it to five friends, post it on Facebook, or add it to your website:

http://www.constitutionalvalues.org

3) Sign the Pledge. Support constitutional values through the nomination and confirmation of this superb candidate. Pledge to support the Coalition for Constitutional Values and learn more about Judge Sonia Sotomayor and how you can get involved by joining the coalition:

http://www.constitutionalvalues.org/?page_id=24

4) Read Up on Sotomayor. Check out the Alliance for Justice Preliminary Report on the nomination of Judge Sonia Sotomayor to the Supreme Court:

http://www.afj.org/check-the-facts/supreme-court-watch

Together we can make sure Justice Sotomayor is swiftly approved to become our next Supreme Court Justice.

About the Author: Paula Brantner is Executive Director of Workplace Fairness, which hosts the Today’s Workplace blog, and has worked as an attorney in the area of employment discrimination and civil rights law for over 16 years. Workplace Fairness is a nonprofit organization that provides information, education and assistance to individual workers and their advocates nationwide and promotes public policies that advance employee rights.

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Supreme Court nominee Judge Sonia Sotomayor is taking heat for being a member of the three-judge panel in Ricci v. DeStefano, a case filed by seventeen white firefighters and one Latino firefighter who were the top-scorers on a multiple-choice firefighter exam.  The case is currently under consideration by the U.S. Supreme Court and has prompted conservatives like Rush Limbaugh and Ann Coulter to label Judge Sotomayor as a “reverse racist.” 

But, there is good reason to believe that the white and Latino firefighters who sued were not the most qualified for promotion.  In reality, the issue in Ricci is not reverse discrimination against better-qualified white candidates.  It is a question central to the lives of every American, of every race — “Is the person with the highest multiple-choice test score necessarily the most qualified?”

So, in contrast to the typical reverse discrimination case, it is the qualifications of those who filed the lawsuit that are in question. The Ricci oral argument suggests that the justices are likely to split along familiar 5-4 ideological lines, with Justice Anthony M. Kennedy as the deciding vote. What has not been made clear in media reports about the case is how different it is from situations where less-qualified minorities benefited from racial preferences.

The reality is that several minority firefighters performed very well on the firefighter exam. Out of more than 100 candidates competing for the seven vacant captain positions and eight open lieutenant positions, Latino firefighters ranked in seventh, eighth and 13th place on the captain list and African American firefighters ranked in 14th, 15th, and 16th place on the lieutenant list. But because of a rule requiring promotions to be doled out in strict rank order, all eight of the lieutenant positions would definitely have gone to whites, who ranked first through 10th on the list, and six of the seven captain positions were likely to go to whites, as well, because they ranked first through sixth.

This is what put New Haven officials between a rock and a hard place or, as Justice David H. Souter said from the bench during oral argument last month, in a “damned-if-you-do-damned-if-you-don’t situation”. The city’s attorney told officials they could be sued by the high-scoring African American and Latino test-takers for violating federal civil rights laws unless they had scientific evidence to show that the white candidates were truly more qualified than the minorities who would be passed over for promotion.  This and other comments made by Justice Souter, the justice whom Judge Sotomayor has been nominated to replace, signal that he, like Sotomayor, views New Haven’s actions as constitutionally valid.  

As a legal matter, employers are prohibited from using tests that have an unjustified racially “discriminatory effect.” It is undisputed that if the list had been certified by city officials, the 2003 promotions would have been so disproportionately white it would have violated federal employment discrimination guidelines. When an employer selects one racial group at higher rates than other racial groups in violation of these guidelines, known as “the four-fifths rule,” members of the adversely affected group have grounds to sue in federal court for race discrimination.

In this case, if minority firefighters had filed a lawsuit, the burden would fall on the city of New Haven to present a scientific justification that the whites who were selected are better qualified than the minority applicants who were not promoted.

Like all standardized tests, the New Haven firefighter multiple-choice test was neither all-powerful nor perfectly precise. The reality is that there is not a clear scientific basis for concluding that the 17 white candidates and one Latino candidate, who were ranked at the top of the lists, were more qualified than the African American and Latino officers who had high scores on the test but ranked slightly lower. As a group of employment testing experts has explained in their own brief to the Supreme Court, the city of New Haven could not prove that ranking in the top-10 of over 70 test-takers means you are truly more qualified than someone who ranked in the top-15.

First, the city did not have a good scientific basis for the amount of weight it placed on the multiple-choice test — 60 percent of a firefighter’s rank on the list. In a neighboring city, Bridgeport, Conn., the fire department only gave the multiple-choice test a 30 percent weighting.

Second, using the lieutenant list as an example, we cannot be certain that the top-10 firefighters (all of whom were white) were more qualified than the top-15 firefighters (two of whom were African American) because the company that made the New Haven firefighter test has admitted that the exam does not measure important skills for the job in question. In fact, it is undisputed that the New Haven firefighter exam was not designed to measure command performance or supervisory skills.

As explained in the Supreme Court brief filed by the employment testing experts, one of the important qualities distinguishing a good fire officer from a good entry-level firefighter is that supervisory officers must have a “steady presence of command so that the unit will follow orders and respond correctly to fire conditions.” Firefighters need “command presence” in order to lead their command units in safely and effectively fighting fires.

Finally, New Haven had reason to believe it might lose a lawsuit filed by minority firefighters because there were less racially discriminatory tests available to identify the firefighters most qualified for promotion. For instance, employment testing experts have found that “assessment centers” — facilities that test firefighters using standardized job-simulation exercises — do a better job than multiple-choice tests of weeding out firefighters who are “book smart, but street dumb.” These centers compare entry-level firefighters based on their ability to do real-world tasks that are typically performed by a firefighter “on the job” instead of comparing how well they answer questions about firefighting on a pencil-and-paper multiple-choice test.

In fact, there is every reason to believe that the firefighters who filed the Ricci lawsuit would not have ranked in the same position on the list had New Haven evaluated firefighters at an assessment center.  In addition to resulting in fewer racial differences in test scores, research shows that the white firefighters who perform best on multiple-choice tests do not always fare as well on tests at assessment centers that simulate real-world firefighting tasks.  In other words, using test scores from assessment centers leads to both to the promotion of greater numbers of minority firefighters and results in the promotion of different, more qualified white firefighters.

Thus, there is a strong argument that promoting firefighters based on their performance in job simulations increases more than racial diversity in the upper ranks of fire departments. It increases public safety.

In most cases challenging standardized testing, the issue is whether test scores were used properly. Here, instead of claiming that the city used a test improperly, firefighters are suing a city for putting a stop to its own improper use of a standardized test. Even in our increasingly test-centered society, this is a striking claim. The city was right to put a halt on promotions because there is no proof that those at the top of the list were more qualified than those firefighters ranked just below them.

About the Author: Kimberly West-Faulcon is a constitutional law professor at Loyola Law School, Los Angeles. Her most recent research on the legal implications of the psychometric properties of standardized tests, “The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws,” appears in the current volume of the University of Pennsylvania Law Review.

A version of this op-ed originally appeared in the Los Angeles Daily Journal on May 13, 2009. Reprinted with permission by the author.

Sonia Sotomayor’s performance as a federal judge had already been criticized in some quarters even before President Barack Obama on Tuesday nominated her to the Supreme Court. These critiques come in three flavors: first, that her decisions show she just isn’t a very good judge; second, that Obama improperly relied on diversity to make an “affirmative action” choice; and third, that she is too intemperate for the job. The bases for these criticisms are thin, persuasive only to the many commentators and senators already inclined to oppose any Obama nominee.

The first line of attack, on Sotomayor’s rulings, does have some very recent ammo: Ricci v. DiStefano, a case the Supreme Court should decide just days or weeks from now. In Ricci, Sotomayor was part of a unanimous three-judge panel that allowed the New Haven Fire Department to jettison the results of a promotion test that resulted in a disproportionate number of whites receiving top scores.

Critics say Sotomayor ruled to allow blatant reverse discrimination, but the reality was more complex for the poor City of New Haven, Conn., which faced competing demands under federal law: (a) avoid discriminating by race, including against whites and also (b) consciously undertake efforts to eliminate even well-intended job tests that have a “disparate impact” on racial minorities, unless the test is a provable “business necessity.” Each is a clear textual command of federal law, and each crashes headlong into each other, making it certain that some judges would rule one way while others rule the opposite.

Whichever way the Supreme Court rules, the decision seems unlikely to be unanimous (most of the recent affirmative action and reverse discrimination cases were 5-4 votes), but that doesn’t mean either side is “bad at judging.” The difference of opinion means only that among skilled judges there is a philosophical difference on a difficult legal question, one we already knew: the current Supreme Court majority (Justices Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito and Anthony Kennedy) is more aggressive about policing “reverse discrimination” against whites, while a current Supreme Court minority (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) and many lower-court judges (such as Sotomayor) do not see any impermissible “reverse discrimination” in applying the rule against allowing most tests that effectively screen out racial minorities.

A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).

In the 2001 opinion, Sotomayor led a unanimous appellate panel in reversing the pretrial dismissal of a female police officer’s claims of discrimination, retaliation, and a hostile work environment. Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country — a more scholarly effort than typically is necessary for a decision on an individual New York police officer’s individual claim. Agree or disagree with her on contentious issues like discrimination law, Sotomayor is a thoughtful, scholarly judge whose work holds up with the best of them.

The second line of attack, on Sotomayor as an “affirmative action” choice, implies that Obama sacrificed merit selection in favor of diversity selection. But Sotomayor’s resume qualifications are unimpeachable: 17 years as a federal judge, at both the trial and appellate levels (unlike the nine current justices, whose only judging experience has been on appeals, not trials); impeccable academic credentials (graduating summa cum laude from Princeton University and, then, from Yale Law School, where she was an editor of the school’s most prestigious academic publication, the Yale Law Journal); and varied legal practice experience (she was a criminal prosecutor in Manhattan and then a civil litigator, eventually specializing in intellectual property work).

Still, even the best resume gets you only on a long list of similarly qualified candidates — just ask federal appellate judges J. Harvie Wilkinson, Edith Jones, J. Michael Luttig, Emilio Garza or any of the other impressive Republican Supreme Court candidates whom President George W. Bush passed over in 2005 in favor of then-federal appellate judges Roberts and Alito.

Admittedly, among the list of qualified candidates, Sotomayor was especially appealing because of the diversity she would bring to the court — not just a women to join a currently almost all-male court, and not just the first Hispanic justice, but also an individual who came from humble beginnings. Her mother, a nurse, raised her in the South Bronx after her father passed away in her youth.

The Supreme Court is the least diverse branch of the federal government, in part because due to its low turnover (only one opening every four years or so) and age of its nominees (most nominees are in their 50s), the current Supreme Court largely reflects the pool of 50-something lawyers in the 1980s and 1990s, which in turn reflects the pool of those attending law school in the 1960s — for historical reasons, not the most diverse crowd.

With the Supreme Court, a critical institution that lags the rest of the government (and private industry) in diversity and that is impossible to diversify immediately, Democratic and Republican nominations alike have considered diversity, even of the purely race-and-gender sort — contrary to the “affirmative action is for liberals” folklore. For his first Supreme Court nomination, in 1981, President Ronald Reagan, having promised to appoint the first female justice, picked Sandra Day O’Connor, who turned out to be the most powerful justice of the 1990s and early 2000s despite a light record of prior accomplishment; O’Connor had been a state legislator and state lower court judge, a far cry from Sotomayor’s resume.

A decade later, in 1991 President George H.W. Bush famously declared “the best-qualified person” for the Supreme Court to be Thomas, who at the time had barely a year of judicial experience and was the youngest court nominee in decades — but who just happened to be an African-American Republican available to replace the retiring Thurgood Marshall, the Supreme Court’s only African-American Justice.

President George W. Bush’s ill-fated nomination of Harriet Miers came after he demanded that staffers specifically provide him female names for potential nominees, according to recent published reports.

So the likely “affirmative action” attacks on the Sotomayor nomination miss the mark, both in their insinuation that she lacks impressive qualifications and in their implication that only liberal Democrats consider diversity relevant to a high court as important as it is non-diverse. Someday, the Supreme Court will be diverse enough that presidents will face less such pressure — but the current court of seven white men, one African-American man, and one white woman isn’t quite there yet.

The third criticism of Sotomayor — that she is an intemperate bully — derives largely from a collection of anonymous quotations in the Almanac of the Federal Judiciary. These reviews, submitted by practicing lawyers, are not pretty: “She is a terror on the bench.” “She is very outspoken.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out-of-control manner. She makes inappropriate outbursts.”

Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being “very outspoken”? Do Sotomayor’s critics see it as a bad thing that Scalia frequently is “overly aggressive” on the bench and in his notoriously entertaining public speeches?

Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a “bully” or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary — that male judges are more likely to be aggressive, whether in proper or improper ways.)

While my small-number statistics don’t qualify as an official empirical study, anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men.

The attacks on Sotomayor’s aggressiveness miss the mark for a more fundamental reason, though. “Judicial temperament” is critical for trial judges dealing with human drama — witnesses reliving traumatic events, emotionally charged evidence, and lawyers’ arguments that tug on jurors’ heartstrings.

But as any practicing lawyer can tell you, appellate litigation is a typically dry affair, vastly different from trials. In appeals, parties and witnesses do not testify, and the lawyer does not issue impassioned hand-over-heart pleas. The vast majority of an appellate lawyer’s work is the solitary researching and writing of lengthy briefs analyzing language from judicial precedents, statutes and regulations. The in-court portion of an appeal is just a short argument on the briefs’ legal analysis, usually just 10 to 15 minutes, to a panel of judges. When a lawyer gets roughed up by a panel of appellate judges, usually the criticism is an impersonal, geeky debate about what amounts to legal minutiae, however important the case is.

Especially at the Supreme Court, appellate litigators tend to be grizzled pros who have been through it all — professional appellate litigators at the Department of Justice, and prestige appellate litigators at private firms, like Roberts in the late 1980s to early 2000s, who served in both of those kinds of appellate litigation jobs.

“Judicial temperament” is a good thing, but it matters mainly for the over 99 percent of judgeships in the country that are not at the United States Supreme Court, which handles only appeals, primarily by seasoned vets of the appellate bar.

The debate on the Sotomayor nomination will be fascinating to watch. The criticisms of her rulings could yield a productive public debate about how judges should decide cases, how the Constitution should be interpreted, and other matters fundamental to our constitutional democracy.

On the other hand, we could get distracted by sideshows: criticism of a Democratic “affirmative action” nomination or criticism of “judicial temperament” based on the exact sort of anonymous complaints about “aggressiveness” that women commonly receive. In short, the nomination could be a wonderful exercise in democracy, or it could be a train wreck of political demagoguery.

About the Author: Scott A. Moss is an associate professor at the University of Colorado Law School.

This article originally appeared in Politico on May 27, 2009. Reprinted with permission by the author.

Photo: AP

In AT&T v. Hulteen Justice Souter authored the 7-2 majority opinion holding that AT&T’s “reliance” interest in perpetuating past pregnancy discrimination trumps the right of  Noreen Hulteen and her fellow plaintiffs to enjoy the same level of retirement benefits as other employees with the same longevity of service to the company.  This is a deeply unfair decision, contrary to the intent of Congress, and utterly unnecessary.

At oral argument Justice Souter acknowledged that the case could go either way, because there were competing lines of legal authority from which the case could be viewed.  The Court’s choice to immunize AT&T’s conduct from liability by resurrecting General Electric v. Gilbert, 429 U.S. 125 (1976), a decision overturned by Congress’ enactment of  the Pregnancy Discrimination Act of 1978, provides a vivid illustration of conservative judicial activism under the guise of  “strict” application of the rule of law.

There was nothing inevitable about this decision. Gilbert holds that denying medical benefits to pregnant women is not “necessarily” sex discrimination, not that disparate treatment of pregnant women could never be.  In fact, one year later Justice Rehnquist, who authored Gilbert, wrote the majority opinion in Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) holding that burdening pregnant women by forcing them to forfeit earned seniority is sex discrimination.

In this case, AT&T’s pregnant employees were deprived of all but 30 days of seniority credit for the time they were out on pregnancy leave, while employees on leave for other disabilities forfeited none. The Court chose to characterize this disparate treatment of pregnant employees as not providing a “benefit,” permissible under Gilbert.  But it could just as easily have decided that it created a “burden” constituting illegal sex discrimination under Satty.

Another choice the Court made was to treat the case as a challenge to AT&T’s seniority system as a whole, rather than to a specific, post-PDA retirement benefit calculation. There is a vast difference, recognized by the courts, between “competitive” seniority and “benefit” seniority.  The Hulteen plaintiffs did not seek to obtain a competitive advantage over male co-workers, or any other retroactive benefit.  They merely sought equal treatment in the calculation of future compensation — retirement benefits“ to which they are clearly entitled by the explicit language of the PDA: “[W]omen affected by pregnancy….shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…”

In holding as it did, the majority chose to “empathize” with AT&T rather than the retiring women who had already endured a lifetime of disadvantage on the job as a result of their pre-PDA pregnancy leaves.  The majority weighed speculative harm to AT&T’s “reliance” interest more heavily than Congress’ explicit, strongly worded intent to protect women from economic injury and injustice on the basis of pregnancy.

But to what end?   To establish the principle that companies may perpetuate discrimination even after Congress acts?    What the Court chooses to call a “retroactive” application of the Pregnancy Discrimination Act could just as easily be described as enforcement of the statute.

No wonder Justice Ginsburg was figuratively tearing out her hair!  There could not be a better illustration of what is at stake in the appointment of Justice Souter’s replacement nor of the need for another woman with Justice Ginsburg’s understanding of employment discrimination on the Supreme Court.  Let’s hope that Congress acts swiftly to overturn this exceedingly bad decision, in language that will finally lay to rest the ghost of Gilbert past.

About the Author: Charlotte Fishman Charlotte Fishman is a San Francisco employment discrimination attorney, and Executive Director of Pick UP the Pace.  She authored the an amicus brief for the National Employment Lawyers Association et al. in support of respondents in AT&T v. Hulteen.