At this early stage most of the canned liberal criticism (canned in the sense that critics obviously have long had ammunition on all possible nominees ready to load and fire at the first opportunity, or before) of the Alito nomination is still usually one version or another of “if-Scalito-is-approved-the-[liberal]-sky will fall” — the heavens will open up and flood us with disasters seen and unseen; the creeks will rise; drilling will increase; dissent will be stifled; corporate rapaciousness will roam unchecked; and discrimination victims will remain victims, roaming the ravaged, right-less landscape unable to find justice anywhere. In other words, just about what all right-thinking (which is to say, left-thinking) people would expect from a conservative.
Conservatives have their own canned ammunition, and the barrage of competing branding attempts has begun. I have neither the interest nor the ability to evaluate all these charges, replies, and counter-charges that are already darkening the skies over the partisan war now beginning to rage, but I do intend to take a close look at lease some of Judge Alito’s positions on race, insofar as they can be determined, and report on my findings here. From a very preliminary look I will say now that my impression of Alito is more mixed than I’d expected, and I’ll explain why in what will probably be the post after this one. (I’m away from home now, and posting schedule is a bit unpredictable.)
I want to begin on a positive note, however (in part to rinse out the bad taste of Miers that still lingers here), and there’s no better way to do that than by taking a close look at one of Alito’s opinions that all his critics think makes him look bad, his dissent in Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997).
According to People for the American Way, Alito’s dissent in Bray “demonstrates skepticism about the legitimacy of some discrimination claims.” PFAW obviously believes that all discrimination claims are legitimate, and any judge who doubts that proposition isn’t fit to serve on the Supreme Court.
Referring to Bray, Chicago law professor (and advisor to Democratic Senators) Cass Sunstein wrote in the Washington Post:
An employee complained that racial discrimination accounted for the fact that she had not been promoted. The court ruled that she had raised serious issues of fact, justifying a jury judgment. Alito dissented, complaining of “an unwarranted extension of the antidiscrimination laws.”
This point was echoed in the Los Angeles Times:
Alito found that a plaintiff had not shown enough evidence to be entitled to a trial on her claim that her employer had denied her a promotion because of racial bias. But the majority disagreed, saying that if Alito’s approach were followed, Title VII of the civil rights act “would be eviscerated.”
My, my. Not only does Alito doubt that “all discrimination claims are legitimate,” but the liberal majority on a liberal court claims that in the world according to Alito the employment protections in the civil rights act “would be eviscerated.” What a horror this guy must be!
Bray is thus an ideal place to begin our evaluation of Alito. Indeed, it such a good place that I wish all the Senators and other interested parties would read the opinion. The issue was whether the plaintiff, who claimed that Marriott’s decision not to promote her was the result of racial discrimination, had produced sufficient evidence to overcome Marriott’s motion for summary judgment. Judge Alito, writing in dissent, agreed with the district court that she had not.
In Fuentes v. Perskie , 32 F.3d 759 (3d Cir. 1994), we laid out the evidentiary requirements a plaintiff has to satisfy in order to survive a motion for summary judgment in a “pretext” employment discrimination case under Title VII. We held that where the employer has proffered a legitimate reason for its employment action, the plaintiff must submit evidence that either :
(1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or
(2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
Id. at 762 (emphasis added). In Sheridan v. E.I. DuPont de Nemours & Co. , 100 F.3d 1061, 1067 (3d Cir. 1996), petition for cert. filed , 65 U.S.L.W. 3571 (Feb 03, 1997) (No. 96-1231), the en banc court reaffirmed Fuentes . I dissent here because I do not see the plaintiff, Beryl Bray, as having met the Fuentes evidentiary burden for showing pretext.
Bray, then, turned not on the factual substance of the claimed discrimination question but on the more technical matter of burden of proof. The case turned on how well Ms. Bray met her burden. Here’s Alito’s summary:
On prong one, which involves discrediting the employer’s proffered legitimate reasons for the employment decision, Bray’s argument was that she “exceeded Ms. Riehle [her competitor, who was promoted instead] in every objective test that could be employed to evaluate the two candidates and that the only criteria under which Ms. Riehle exceeded plaintiff involved subjective inquiries which are simply not credible.” (Dist. Ct. Op. at 17-18). On prong two, which requires plaintiff to show that racial discrimination was more likely than not a motivating or determinative cause of the adverse employment decision, Bray pointed to a document setting forth the minority hiring goals of the Park Ridge Marriott, and alleged that the failure to meet these goals made it “more probable than not that racial discrimination was a motivating or determinative factor in her rejection for the position of Director of Services.” (Dist. Ct. Op. at 21). The district court found Bray’s arguments insufficient on both prongs and granted the Marriott’s motion for summary judgment….
Marriott’s proffered legitimate reason for why it promoted Therese Riehle over Bray was that Riehle was better qualified. Bray counters with the assertion that the evidence shows that her qualifications were so much better than those of Riehle that “there is no reasonable explanation as to why Riehle was given the position over Beryl Bray other than using race as a consideration.” 12 (Appellant’s Br. at 6).
[Editorial Interruption: Let me pause here to note the irony of Alito’s critics sympathizing with this plaintiff and reacting with shocked horror at the very idea of an organization “using race as a consideration.” How dare they do that! Let me thus, right here and now, propose the DISCRIMINATIONS compromise to all sides of this conflict: from this day forward, I propose that all employers pledge never to use “race as a consideration” in hiring decisions … if college admissions offices and hiring and promotion committees will make the same pledge.]
Getting back to Bray, Alito continued by noting that to discredit an employer’s proffered reasons for rejecting the plaintiff
the plaintiff cannot simply show that the employer’s reason was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.
Alito agrees that the plaintiff’s “prong one” burden is indeed “difficult” (Fuentes at 765), but, he writes, that
makes sense because plaintiff is attempting to indirectly produce an inference of intentional discrimination out of the fact that the employer’s proffered reason was untrue. Hence, where, as is the case here, the defendant asserts that it made the choice among candidates that it did because it wanted the “best qualified” candidate, plaintiff would have to point to evidence that showed either (1) that the defendant’s selection process and criteria were filled with such inconsistencies that the employer’s claim that it was seeking the “best qualified” candidate was a sham or (2) that the qualifications of the person actually promoted were so much lower than those of her competitors that a reasonable factfinder could disbelieve the claim that the employer was honestly seeking the best qualified candidate.
It is crucial to understand that prong one is not satisfied if plaintiff merely points to evidence that shows that her qualifications were roughly comparable to those of her competitors. Nor is prong one satisfied by evidence that the employer is not “fair” or “kind” as a general matter. Prong one requires that plaintiff point to evidence from which a reasonable factfinder can “disbelieve the employer’s articulated reasons.” Fuentes , 32 F.3d at 764. “Disbelieve” is a higher standard than “disagree.” It is not enough for the evidence to be such that a reasonable factfinder could disagree with the employer as to which candidate was better qualified. Instead, the evidence must be such that a reasonable factfinder can infer that the employer was not truly looking for the best qualified candidate, i.e. , that the employer’s articulated legitimate reason was pretextual. The burden on a plaintiff seeking to proceed on prong one is difficult, but as Fuentes explains, “‘[i]t arises from an inherent tension between the goal of all discrimination law and our society’s commitment to free decisionmaking by the private sector in economic affairs.'” [cites omitted]….
In other words, so long as Bray is proceeding on prong one, she is required to point to evidence from which a reasonable factfinder could infer that Marriott did not honestly believe that Riehle was better qualified than Bray.
Alito, agreeing with the district court judge, concluded that she had not. That hardly makes him the Boston Strangler of civil rights law, but you couldn’t tell that from the heated critics of his dissent. People For The American Way, for example, claims that Judge Alito’s reasonable — and to me, convincing — application of the controlling Fuentes precedent amounted to imposing “an almost impossible evidentiary burden on victims of employment discrimination.” Typical of the left wing blogs, Minipundit asserts that “Alito thinks that racist employers should be able to not hire blacks for being black.” Referring to Bray, Think Progress claims that Alito “would allow race-based discrimination,” which is patently false. Atrios, displaying the civility for which he has become known, writes that for Judge Alito to pay his respects to Rosa Parks is “appalling.”
The idea that they’re going to parade him in front of her casket after his nomination is truly demented, especially given Alito’s dissent in Bray v. Marriot [sic] Hotels.
The comments to Atrios’s post are considerably less civil [“This guy is a monster” is one of the nicer ones.]
Our situation and our problem, I’m afraid, is much deeper and more profound than a disagreement over such things as what the Civil Rights Act requires or even the meaning of equality. People can discuss and debate their disagreements, but to do so they must inhabit the same moral, political, and conceptual universe.
Increasingly, we don’t.
UPDATE: More Braying [Nov. 3]
An article in the Washington Post this morning, “Critics See Ammunition In Alito’s Rights Record,” highlights Judge Alito’s Bray dissent as one “his critics say reflects a narrow reading of civil rights laws.”
The WaPo’s review of Judge Alito’s civil right rulings found that “Alito has agreed with the court’s majority most of the time,” but no matter:
Alito’s lengthy record on rights is emerging as a significant cleavage point between his supporters on the right and detractors on the left, even before activists on both sides have completed poring over his opinions.
I say, arm both sides with Bray and bring it on.
Braying At Alito
Braying At Alito
Whats wrong with the majority’s view of how to apply the precedent?
Also, i don’t think this was made clear, and you didn’t say anything that would mislead on this, but the technical issue isn’t just burden of proof, its what burden is needed to even have the right to have a trial on the question of discrimination.
Actus,
What’s wrong with it is precisely the flip of what PFAW says.
PFAW says Alito “imposes an almost impossible evidentiary burden” on plaintiffs. The majority in Bray impose an “almost impossible evidentiary burden” on defendants. Plaintiff, traditionally, have the burden to show with a preponderance of evidence their case – Defendants should never have even that burden (unless the Plaintiff first meets their burden, then the burden of rebuttal is by preponderance), but in this case, the logical inference from the majority is that Defendants burden is almost to prove with certainty the allegation isn’t true.
Discrimination exists. Penalties for it should be exceedingly high – when it is proved (and part of the reason for high penalties is that it may, indeed, not always be easy to prove and there should be some deterrent — which is a common theme of all kinds of law, such as fraud law (ie – “treble damages”), tort law, etc.). But we should not throw away our system of jurisprudence because we can not catch every case, or because its a “special” area of law.
Actus, upon rereading your comment, your right, the technical issue is not just normal burden of proof (my analysis still applies though), its on the burden of proof to survive a motion for summary judgement, which means that the plaintiff must present the possibility (they don’t have to actually enter the evidence, only proffer that it exists) enough evidence and a theory of that evidence (such that, even “all of the plaintiffs factual assertions are accepted as true, would the plaintiff be able to win” or “if all of the possible legal theories the plaintiff could argue given those facts could, as a matter of law, give the plaintiff a winning” theory).
That is more technical than the standard burden in the main phase of a trial.
Second, you say “what is wrong with the majority.” There need be nothing wrong with the majority opinion here — the question is what is wrong with Alito’s opinion. It is logically possible that Alito’s dissent and the majority ruling could both present valid and legitimate ways of seeing the law – law is about competing values, we should expect some dissent among judges. You (or your side) has the burden of proving that Alito’s opinion is wrong, irrational, or somehow defective — not our burden to prove that the majority in this particular panel wasn’t “right”.
Bray is technical and Alito’s ruling plausible – I suspect that the opposition won’t be able to hang their hats on it.
In this case, Alito is saying that 1) the only evidence offered by Plaintiff is that she was equally or roughly equally qualified to the person hired, and Alito accepts that as true (proper for motion for summary disposition), but says 2) on its face that can’t satisfy “prong 2” of a previous precedent
(2) that the qualifications of the person actually promoted were so much lower than those of her competitors that a reasonable factfinder could disbelieve the claim that the employer was honestly seeking the best qualified candidate.
and that, according to Alito, that assertion can’t satisfy prong two because
Nor is prong one satisfied by evidence that the employer is not “fair” or “kind” as a general matter. Prong one requires that plaintiff point to evidence from which a reasonable factfinder can “disbelieve the employer’s articulated reasons.”
If evidence that a person is “equally or similarly qualified” is all one need to get in the courtroom door, then everyone (including non-minorities) will have be encouraged to file lawsuits when a decision doesn’t go there way.
Reiterating the “competing values” I proposed above (that both the majority and dissent need not be flawed), Alito concludes:
The burden on a plaintiff seeking to proceed on prong one is difficult, but as Fuentes explains, “‘[i]t arises from an inherent tension between the goal of all discrimination law and our society’s commitment to free decisionmaking by the private sector in economic affairs.'” [cites omitted]….
This is what convinces and persuades me the majority decision is problematic. Alito seems to be balancing both interests well here — indeed, he would appear to be “in the middle” on this one. His logic, had it been adopted as majority binding precedent, would reinforce the rationale and existence of discrimination law, but give it only equal weight to doctrines of free association, commerce, and innocence until proven guilty.
It might be interesting to see how Bray v. Marriot actually turned out upon remand. Did Bray meet her burden of proof later (odds are it settled out of court, but)….?
Sorry, misspelled a “their” using “there” and had a bad tense construction above. Haven’t finished my coffee yet.
“Plaintiff, traditionally, have the burden to show with a preponderance of evidence their case”
at trial. This is in order to even get a trial in which you prove your case to a preponderance of evidence.
” – Defendants should never have even that burden (unless the Plaintiff first meets their burden, then the burden of rebuttal is by preponderance), but in this case, the logical inference from the majority is that Defendants burden is almost to prove with certainty the allegation isn’t true.”
As it should be. Remember, this is before a trial, on summary judgement. The traditional standard is that there are no questions of fact, if there are questions of fact, they are to be resolved in a trial. Its up to the plaintiff to show a question of fact, and up to the Defendant to say there isn’t one.
At least in general. It may be different in the discrimination context.
“It is logically possible that Alito’s dissent and the majority ruling could both present valid and legitimate ways of seeing the law – law is about competing values, we should expect some dissent among judges.”
And the point is his valid and legitimate way of seeing the law is perhaps one we don’t want on the supreme court.
“His logic, had it been adopted as majority binding precedent, would reinforce the rationale and existence of discrimination law, but give it only equal weight to doctrines of free association, commerce, and innocence until proven guilty.”
What does this have to do with innocence until proven guilty? this is not a criminal statute, and the whole question is whether a plaintiff even has the right to TRY to prove their case.
Actus,
If would have been nice if Ms. Bray’s Attorney had actually presented any evidence that that racist action was actually taken by Marriott.
Yet, Ms. Bray seems to be arguing: I am black, I am somewhat qualified, and thus, I must be hired or I will call you a racist. .
“If would have been nice if Ms. Bray’s Attorney had actually presented any evidence that that racist action was actually taken by Marriott.”
So there is a question of fact as to whether there was racism? lets have it out at a trial!
“Yet, Ms. Bray seems to be arguing: I am black, I am somewhat qualified, and thus, I must be hired or I will call you a racist. ”
Actually the claim is that they are equally qualified and the normal process was not used.
In reviewing the opinion, The white women was slightly better qualified and was a higher grade of employee. It was also that 10 people had applied for the job.
Bray’s attorney were also found to have lied about what the normal policy was. It was a very, very weak case and it is not unreasonable for find in summary judgement.
However, maybe Ms. Bray’s attorney;s were wanting to go to trial in hopes of having enough African-Americans on a jury to look past the law and at the race of both sides.
“In reviewing the opinion, The white women was slightly better qualified and was a higher grade of employee.”
Maybe you missed this part:
“To me, the evidence in this case shows two things — (1) that the qualifications of Bray and Riehle for the Director of Services position they were seeking were roughly equal”
But I’m sure you’re a better judge than those guys.
Actus,
In my second comment, I noted that I had “re-read” your response and I focused on he standards for summary disposition, not standards at general trial.
The key way a defendant wins on summary disposition is that it accepts the factual claims of the plaintiff (meaning there is no issue about “evidence” or “proven guilty”), and argues that that evidence alone is not enough under the law to proceed. That’s what Alito did here — he accepted the plaintiff’s claim, and said it didn’t meet the standards to prove the legal elements of discrimination, which have been described above.
On a more basic level though Superdestroyer’s comment:
Yet, Ms. Bray seems to be arguing: I am black, I am somewhat qualified, and thus, I must be hired or I will call you a racist.
is a somewhat accurate reflection of the puacity of Bray’s legal claim given the facts she offered, however, I wouldn’t have phrased it that roughly since I’m not sure of Bray’s personal motivations for the suit.
You respond:
Actually the claim is that they are equally qualified and the normal process was not used.
No, the claim was that they were “roughly equally qualified,” with maybe an slight edge to the actual hiree (grade 43 v. grade 45 for the hiree, if I recall). Regardless, Alito, in the motion for summary disposition, is required to view the facts in the best light favorable to the non-moving (plaintiff) party — so he accepts they are perhaps even equally qualified. There is clearly no evidence at all that Bray was more qualified, and prong two of the test is that Bray shows discrimination (or a preponderance of the evidence suggesting it sufficient to win the case) by showing that she is “so much more qualified than the actual” hiree that “any reasonable factfinder” would conclude that the defendant’s “explanation” is suspect. Obviously, she doesn’t meet prong two, and no factual development is possible (since she already offered opposite facts) to meet it — summary disposition is reasonable (for that prong).
The remaining prong of the legal test is
there must be EVIDENCE so that a “reasonable factfinder can disbelieve the employer’s articulated reasons.” (emphasis mine)
The defense is entitled to “explain” it’s process. The defense explained here that it as a “close call,” but that the winner scored was a slightly higher grade employee (43 to 45) and had some other explanations. The plaintiff arguments, according to Alito, were that the”employer was not “fair” or “kind” as a general matter.” Alito writes:
Nor is prong one satisfied by evidence that the employer is not “fair” or “kind” as a general matter. Prong one requires that plaintiff point to evidence from which a reasonable factfinder can “disbelieve the employer’s articulated reasons.”
All Bray had were proffered allegations of OPINION (“fair” or “kind”) — I don’t see any allegations, as you assert, that the “normal process” wasn’t followed (which, I’d find certainly persuasive enough to justify a trial — failure to follow normal process leads me, a reasonable fact-finder, to disbelieve articulated reasons, although under the higher evidentiary standards at trial and given and take of presentation, it might not be enough). Where was the normal process changed, Actus?
“The key way a defendant wins on summary disposition is that it accepts the factual claims of the plaintiff (”
And reasonable inferences from that evidence too.
” There is clearly no evidence at all that Bray was more qualified”
But yet…
“Bray insists that, during her interview, Joosten told her she was the leading candidate”
I think the majority speaks correctly when it states:
“A reasonable jury could conclude from Nemetz’s concededly inaccurate assessment of Bray that the decision to reject her and interview Riehle was driven by racial bias and not by the explanations offered by Marriott.”
The bulk of my comments are here.
The point is that to go to a jury there must be some chance that a reasonable jury could find that Marriott was motivated by racism. In order to find that, the jury must conclude that Bray was so much better qualified than Riehle, that Marriott couldn’t possibly have really thought Riehle was better, and therefore when it says it did think Riehle was better it must be lying.
Alito says, quite reasonably IMHO, that on the evidence presented, and not disputed by either side, it would impossible for any reasonable jury to reach such a conclusion. The two candidates were roughly equal in qualifications, and a reasonable case could be made for hiring each one. A jury might find that Bray was the better candidate, but it could not possibly find that Marriott knew and believed that Bray was the better candidate, and nevertheless refused her the promotion. Since Bray could not possibly make her case, there was no reason to drag Marriott through the expense of a trial, and subject it to the risk of a renegade jury finding for Bray despite the evidence.
What should be pointed out is is Ms. Bray had been hired instead of Ms. Riehle, Ms. Riehle would have had a much stronger claim about racial discriminati
on than Ms. Bray does in the current case.
Yet, I believe that too many black Americans treat job discrimination the same as using racist language: it is something that whites are not allowed but something that should be tolerated if black do it.
“In order to find that, the jury must conclude that Bray was so much better qualified than Riehle, that Marriott couldn’t possibly have really thought Riehle was better, and therefore when it says it did think Riehle was better it must be lying.”
Why can’t the jury just find that they were equally qualified and the decision was made on the basis of racial discrimination, rather than some other factor? Why does it have to be that it is shown that one is ‘so much better qualified.’?
Actus,
In your racially charged world, if employers did not have the much better qualified prong of the test, they would be open to a lawsuit everytime they did not hire a black person since all a black person, like Ms. Bray, would have to do is claim discriination and then hope for a black majorty jury.
“In your racially charged world, if employers did not have the much better qualified prong of the test, they would be open to a lawsuit everytime they did not hire a black person since all a black person, like Ms. Bray, would have to do is claim discriination and then hope for a black majorty jury.”
The question is if a reasonable jury can conclude it. Which it can. That’s what summary judgment is about.
Actus,
I have always loved how the left in this country does nothing anymore but nitpick. No sane jury would have found against Marriott. However, I do believe that a federal jury picked in Newark New Jersey would found against Marriot any every case that Marriot did not hire a black person if they were competing against a white person (and espeically a white women).
The role of jduges in this country is to keep worthless cases from getting to juries who can and are anything but reasonable. The Bray case, from all of the facts, is just such a case.
I also believe that most blacks in this country favor such a low standard for proving discrimination because they believe they will never be sued for discrimination. Yet, in a few years when black own businesses start failing to hire Hispanics, I would anticipate just such lawsuits.
“I have always loved how the left in this country does nothing anymore but nitpick. No sane jury would have found against Marriott.”
There you go.
Yes, superdestroyer, good thing we have judges to protect us from ourselves.
actus, in answer to your earlier question about why Bray couldn’t have just shown that the hiring decision was based on racial discrimination, she in fact could have:
(2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
However, her case wasn’t based on this, presumably because she didn’t have any, or enough, evidence of it. Instead her argument was, as Milhouse said, that she was better qualified than Riehle. I don’t know if this is as clearly false as others believe, as she did present supporting evidence, but it doesn’t appear a strong case.
I see both the majority and Alito as reasonable here – as Chetly said, it’s a matter of how they balanced competing interests – but I’d probably somewhat favor with the majority. If discrimination cases were easier to bring to trial it would weaken the case for affirmative action. Of course business would never agree to such a trade-off as affirmative action is cheaper than litigation and settlements.
“I don’t know if this is as clearly false as others believe, as she did present supporting evidence, but it doesn’t appear a strong case.”
She doesn’t have to make a strong case for this judge. That’s what the trial is for.
One of the bedrock arguments made by my Anti-Affirmative Action type friends on this blog is that to paraphrase:
“There are anti-discrimination laws already on the books, and that people who feel they’ve been discriminated against should seek redress in the court system.”
Wouldn’t any attempt to hamstring this process, or make it exceedingly more difficult for the aggrieved party be working AGAINST the very foundation of the AAA movement?
–Cobra