Bench Memos

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Alito and Title VII—Part 2


The more one examines PFAW’s report attacking Judge Alito, the more ridiculous it gets. The lead gender-discrimination case that PFAW features is Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3rd Cir. 1996) (en banc). PFAW falsely claims that if Alito’s position were “adopted more broadly[,] it would make it much more difficult for victims of discrimination to get to court and to prove their case.” As it happens, Alito’s position has been adopted more broadly: In 2000, a unanimous Supreme Court, in an opinion by Justice O’Connor, adopted Alito’s position.

In Sheridan, the 10-member majority concluded that an employer is never entitled to summary judgment on a Title VII employment-discrimination claim when the plaintiff has made out a prima facie case and offered evidence sufficient to support a finding that the employer’s proffered nondiscriminatory explanation was pretextual. Alito, in dissent, noted that the majority had failed to acknowledge that the Fifth Circuit (by a 16-1 en banc vote) and the First and Eleventh Circuits had rejected the majority’s position.

Alito agreed that an award of summary judgment is usually improper where there is sufficient evidence to show that the employer’s proffered explanation is pretextual. But, in an extended scholarly explanation, he rejected the majority’s blanket conclusion that summary judgment would always be improper. Here’s his powerful example to which the majority, tellingly, offers no response:

A man with a disability applies for a promotion, but the promotion is given to a woman without a disability.… The plaintiff establishes a prima facie case of gender discrimination by showing that he is a man, he was qualified for the job, he applied, but it was given to a woman. There is no other evidence of gender discrimination against men; indeed, there is evidence that the decisionmaker was a man and that the great majority of the employees in the job category at issue were men. The employer says that the woman was chosen because her qualifications were better, but the plaintiff shows that this explanation is full of holes. In addition and most important, there is strong, direct evidence that the decisionmaker was biased against the plaintiff because of his disability. Among other things, there is testimony that, when the decisionmaker learned that the plaintiff had applied for the promotion, the decisionmaker made insulting and derogatory remarks about the plaintiff’s disability.
Is there enough evidence in this case to convince a rational trier of fact that the promotion decision was based on gender discrimination? I think not, and if I am right, then the majority’s blanket test is disproven.

In 2000, in Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court unanimously agreed with Alito’s position. In the words of Justice O’Connor’s opinion for the Court:
[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.

Contrary to PFAW, the position that Alito and the unanimous Supreme Court have adopted makes it easier, not harder, for genuine victims of discrimination “to get to court and to prove their case,” as it enables the courts to dispose more efficiently of meritless claims that would otherwise impede the courts from addressing meritorious claims.


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