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Peter Kirsanow

Opponents of Judge Alito’s confirmation to the Supreme Court assert that he commonly erects extraordinarily high standards for Title VII plaintiffs. This is false.

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Critics repeatedly cite Judge Alito’s dissent in Bray v. Marriott as evidence of his tendency to impose “almost impossible evidentiary burdens” upon plaintiffs in Title VII cases. But a review of Bray actually shows that Judge Alito’s dissent steadfastly adheres to precedent and carefully applies the law to the facts, while the majority opinion dilutes the well-established burden of proof required of a Title VII plaintiff.

Every employment lawyer in the country can recite by heart the Title VII burden-of-proof framework set forth in McDonnell Douglas v. Green and its progeny:


A. To establish a prima facie case of unlawful discrimination, a plaintiff must establish that he or she
1. is a member of a protected class;
2. applied for and was qualified for the job opening in question;
3. was rejected; and
4. after rejection, the job remained open and the employer continued to seek applicants to fill it.

B. Once a plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate, non-discriminatory reason for plaintiff’s rejection. It’s important to note that the burden of production isn’t a burden of proof, i.e., defendant isn’t required to prove that its articulated reason was, in fact, the basis for plaintiff’s rejection. Rather, defendant is required to produce evidence that there was a nondiscriminatory reason for plaintiff’s rejection. The burden of proving discrimination always remains with plaintiff.
C. If defendant proffers a legitimate, nondiscriminatory reason for plaintiff’s rejection, then plaintiff must present evidence that either
1. casts sufficient doubt on defendant’s proffered reason(s) so that a fact finder could reasonably conclude that each reason was a fabrication (i.e., plaintiff must produce evidence from which the fact finder could reasonably disbelieve the employer’s articulated reason for rejection. It’s not enough for plaintiff merely to show that an employer’s reason was wrong, unwise or mistaken) [Pretext Prong One] or

2. allows the fact finder to infer that discrimination was more likely than not a motivating or determining reason for the rejection [Pretext Prong Two].

In Bray, plaintiff, a black female employee, brought a complaint against Marriott alleging Marriott discriminated against her in favor of a white female employee when it failed to promote Bray to the position of Director of Services.

Marriott’s proffered nondiscriminatory reason for selecting the white female over Bray was that the former was better qualified: The white applicant had (1) a higher three-year performance rating (1, 2, and 1 versus 2, 2, and 2); (2) a higher job-grade level (45 versus 43); (3) a degree in restaurant and hotel management versus English and history; and (4) was twice named Manager of the Year, which Bray never was.

Bray attempted to cast doubt on Marriott’s proffered reason by introducing evidence that (1) the white applicant’s most recent performance rating was based on a semi-annual review rather than an annual one, (2) Marriott never told Bray that she was rejected before interviewing the white applicant, contrary to Marriott’s internal guidelines, and (3) there were inaccuracies in a Marriott general manager’s deposition testimony regarding the evaluation and selection process.

The district court was unpersuaded that Bray’s evidence created a genuine issue of material fact and granted Marriott’s motion for summary judgment. At the district-court level, Bray had maintained that she had satisfied both pretext prongs, but on appeal she only challenged the district court’s Prong One determination. Bray contended that she had shown that she exceeded the white employee in every objective measure and that there was no reasonable explanation for her not getting the position other than race discrimination.

A majority of the Third Circuit three-judge panel agreed that Bray had presented enough evidence of inaccuracies and discrepancies in Marriott’s proffered nondiscriminatory reason to allow a reasonable fact finder to infer that such reason was a pretext for discrimination. Specifically, the majority cited Marriott’s failure to comply with its internal guidelines by failing to notify plaintiff of her rejection before interviewing the white applicant; the general manager’s inaccurate deposition testimony that he thought Bray wasn’t capable of doing the job; the general manager’s inaccurate deposition testimony that the white applicant was unanimously chosen by the three-member selection committee; and the fact that the white applicant’s last evaluation was a semi-annual one as opposed to an annual one. The Third Circuit reversed.

Judge Alito dissented, noting that the Prong One standard requiring plaintiff to provide evidence that may cause a reasonable fact finder to disbelieve defendant’s proffered reason is a higher standard than one that requires only that the fact finder disagree with the reason. Judge Alito noted that the purported inconsistencies and discrepancies in Marriott’s proffered reason didn’t rise to the Prong One standard and, moreover, were qualified by other evidence: viz (1) Marriott’s failure to comply with its internal guidelines regarding notifying plaintiff of her rejection before interviewing the white applicant was a de-minimus administrative error; (2) the general manager’s inaccurate statement that Bray wasn’t capable of doing the job was clarified by his very next deposition statement wherein he stated that he was looking for the “best qualified” candidate; (3) the general manager’s inaccurate testimony that the white applicant was selected unanimously was, again, de-minimus (two members agreed with the selection, one abstained); and (4) the issue of the semi-annual review, even if somehow probative of discriminatory animus (presumably by suggesting that it was an effort to inflate the white applicant’s record), wasn’t raised by Bray on appeal and, accordingly, was waived.

While the majority’s burden of proof analysis wasn’t necessarily a radical departure from the standard in a pretext case, Judge Alito “respectfully suggest(ed) that what the majority here has done is to weaken the burden on plaintiff at the pretext stage of the McDonnell Douglas framework to one where all the plaintiff needs to do is point to minor inconsistencies or discrepancies in terms of the employer’s failure to follow its own internal procedures in order to get to trial.”

Judge Alito’s suggestion is a bit modest. In truth, the majority’s approach effectively transforms defendant’s burden of production into a burden of proof, thereby derogating plaintiff’s burden of proof and incorporating, however subtlely, a presumption of discrimination into the McDonnell Douglas framework.

Judge Alito’s record shows that he doesn’t raise the evidentiary bar for civil-rights plaintiffs. He does, however, raise the bar for legal acumen.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.



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