Bench Memos

NRO’s home for judicial news and analysis.

Alito and Title VII


Let’s take a closer look at the lead race case the Left is trying to use against Judge Alito, Bray v. Marriott Hotels , 110 F.3d 396 (3rd Cir. 1997). That case is the first one mentioned in the “Racial Discrimination” section of People For the (Un)American Way’s attack on Alito, and it occupied center stage in last week’s Washington Post article on Alito’s civil-rights decisions.

Bray, an African-American female and a Marriott worker, had applied for promotion to a particular position, as had seven to nine other hotel employees. Marriott instead offered the position to Riehle, a white female. Bray sued under Title VII, claiming that she had been denied the promotion because of her race.

Under existing case law, a Title VII plaintiff must carry the initial burden of establishing a “prima facie” case–a rebuttable presumption–of unlawful discrimination. That burden is not substantial and does not require showing any actual evidence of discrimination. On her claim for failure to promote, for example, Bray had to show that she (1) belonged to a protected category (in her case, that she was African-American), (2) applied for and was qualified for a job in an available position, and (3) did not receive the job.

Once this prima facie case is established, the burden then shifts to the employer to demonstrate that there was a nondiscriminatory reason for the job decision. If the employer satisfies this burden, then, under Third Circuit case law, the plaintiff had to submit evidence that either (1) casts sufficient doubt on the reasons offered by the employer so that a jury could reasonably conclude that each reason was a fabrication (“Prong One”), or (2) allows the jury to infer that discrimination was more likely than not a motivating or determinative cause of the decision (“Prong Two”).

Marriott offered as its reason for selecting Riehle over Bray its judgment that Riehle was the best applicant for the position. As the panel majority points out, Marriott “pointed to a host of factors to support its contention,” including Riehle’s higher objective rating, her superior experience, and her participation in more seminars and training sessions. The district judge awarded summary judgment to Marriott.

The panel majority found that the facts were sufficiently in dispute that summary judgment in Marriott’s favor was improper. Judge Alito, in dissent, first made clear that he understood Bray on appeal to be challenging the district court’s ruling only on Prong One. He then explained (quoting Third Circuit case law) that Prong One “requires that plaintiff point to evidence from which a reasonable factfinder can ‘disbelieve the employer’s articulated reasons’” (and not merely disagree with them). In other words, Bray had to offer evidence from which a jury could infer that Marriott was not really trying to find the best qualified candidate or that Marriott did not honestly believe that Riehle was better qualified than Bray. And he explained in detail how the majority “has not come close to holding Bray to her burden under prong one.”

Alito further argued that evidence of unfairness in the selection process–in Bray’s case, Marriott’s failure to follow its internal procedures–that is not linked to discriminatory animus should not get a plaintiff beyond summary judgment, “so long as the employer’s proffered legitimate reason for the employment decision remains intact.”

In charging that Alito’s position “would immunize an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias” and would “eviscerate[]” Title VII, the majority completely misreads Alito’s dissent. In particular, it appears not to understand that Alito’s dissent relates entirely to Prong One–and thus leaves a plaintiff entirely free, under Prong Two, to rebut the employer’s proffered reason by offering evidence from which a jury could infer that discrimination was more likely than not a motivating or determinative cause. PFAW’s assertion that Alito’s dissent “made clear that he would have imposed an almost impossible evidentiary burden on victims of employment discrimination” similarly finds zero support in Alito’s opinion.


Sign up for free NRO e-mails today:

Subscribe to National Review