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1/21 The real problems with anti-discrimination law don’t make headlines, but they should: A thread.
2/21 A judge reverses a pregnancy discrimination verdict in favor of a woman—even though there was testimony at trial that her supervisor admitted she was fired “because she’s been pregnant 3 times in 3 years.”
3/21 A 57 year old sales agent, whose supervisor regularly told him that older sales agents were “too slow, “can’t learn” and “don’t have the energy for sales” is told he doesn’t have enough evidence to take his age case to a jury.
4/21 A Haitian limo driver who was called a “black mother” and “black b------,” and told directly that “I never liked you black Haitians” by his supervisor is prevented from going to trial on his race discrimination claim.
5/21 Cases like these—dismissing discrimination claims, without any fact-finder determination, and in the face of strong evidence—are commonplace in the lower courts.
6/21 At the center of each of these cases—and many more—is the lower courts’ misapplication of the “McDonnell Douglas” paradigm.
7/21 A short primer on McDonnell Douglas: 1) It is by far the most common way that plaintiffs bring discrimination claims; 2) plaintiffs are often required to use it; 3) it is often applied in hyper-technical ways that make it virtually impossible to win discrimination claims.
8/21 All told, the McDonnell Douglas paradigm results in the dismissal of dozens of discrimination cases each year.
9/21 These decisions have been largely invisible from public view, since individually, they appear to be technical, individualized and unimportant.
10/21 But collectively, they represent an illegitimate, widespread, and devastating judicial nullification of hard fought anti-discrimination rights.
11/21 The current anti-plaintiff application of the McDonnell Douglas paradigm is ironic, because the paradigm was originally intended to benefit plaintiffs.
12/21 But the Supreme Court held in a series of decisions that the technical aspects of McDonnell Douglas that benefitted plaintiffs were impermissible. See, e.g., St. Mary’s Honor.
13/21 Instead, they held that defendants could only be held responsible under McDonnell Douglas where, as a matter of fact, they treated the plaintiff differently (based on their race, sex, or other protected class status). See, e.g., St. Mary’s Honor; see also Aikens.
14/21 In the years since those decisions, lower courts have applied a factual discrimination standard to defendants, but they have not applied it to plaintiffs.
15/21 That means that discrimination plaintiffs regularly lose, even when they could factually show that they were subjected to discrimination.
16/21 Instead, plaintiffs have been required to jump through a series of technical hoops that have little relationship to the issue of whether they experienced discrimination.
17/21 As I lay out in this article, this double standard for discrimination plaintiffs and defendants should be clearly impermissible under the Supreme Court’s precedents: https://ssrn.com/abstract=3362529
18/21 The very same reasoning that the Supreme Court used to require a factual discrimination standard for defendants is equally applicable to plaintiffs.
19/21 Thus, lower courts are ignoring Supreme Court precedent—and acting unlawfully—when they dismiss factually supportable discrimination claims on technical grounds.
20/21 For more on the illegitimacy of technical dismissals of discrimination plaintiffs' claims, check out the paper, "The Return of the Technical McDonnell Douglas Paradigm": https://ssrn.com/abstract=3362529
21/21 And check out the work of others doing important work in this area, especially @SandraSperino, who has been working to call attention to this issue for years.
