INTO THE WEEDS: MODERN DISCRIMINATION LAW.

• Author: Sperino, Sandra F.

INTRODUCTION

Modern discrimination law is the law of minutiae. Judicial energy is not primarily focused on large questions about why workplace inequality exists or how to prevent it. It is not even focused on whether the plaintiff in a particular case was treated differently because of a protected trait. Instead, judicial energy centers on interpreting and applying an ever-growing phalanx of complicated court-created ancillary doctrines.

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. (1) Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and whistles to these basic roadmaps. These court-created ancillary doctrines or subdoctrines require an ever-increasing amount of judicial attention. (2)

While legal scholars have challenged the ancillary doctrines individually, (3) this Article examines them collectively. When viewed collectively, it is easier to see how the system of creating and using ancillary doctrines is significantly flawed. (4) Any benefits that derive from it are outweighed by its problems.

First, the subdoctrine jurisprudence is ineffective. As this Article will demonstrate, the court-created subdoctrines create confusion in even the simplest cases. A judge can use the current doctrine to reach conflicting results: either granting summary judgment for the employer or letting a case go to trial. (5) According to the established ancillary doctrines, either outcome can be justified.

Second, by looking at the ancillary doctrines together, rather than as separate concepts, a pattern emerges. In each instance, courts created an employment-discrimination-specific paradigm that is one or two steps removed from the statutory language, using new language and concepts that are not found in the original statutes. Any objective review of the new language reveals scores of unanswered questions hidden within it. After the courts create the particular framework or defense, years or decades of confusion follow, as judges try to interpret the original judicially created idea.

At times, the judges find words within the original concept and turn these words into terms of art. The terms of art derive from the judicially created concept, and not from the statutes themselves. Judges then spend time defining these terms of art, which are yet another step removed from the original statutes.

The terms of art also contain terms of art. Judges must then define these secondary terms of art, which are at least three steps removed from the original statutes. At times, the original terms of art or secondary terms of art appear to conflict with or are in tension with other court-created terms of art. The courts must then resolve how these terms of art relate to one another. These issues are even further removed from the statute.

In some instances, judges interpret the framework, doctrine, or defense in a particular way, and then encounter a factual scenario that does not fit well within the original iteration. Judges then formalize an exception. At times, they have then created exceptions to the exceptions. The exceptions and the exceptions to the exceptions are not always neatly defined, causing confusion. In addition, circuits formalize different exceptions, creating circuit splits. While each of the ancillary doctrines discussed in this Article can he critiqued individually, it also is important to illuminate the pattern of doctrines, subdoctrines, and sub-subdoctrines that is a structural feature of this court-created jurisprudence.

Third, this Article argues that any new court-created doctrines are subject to these same structural problems. It shows how "cat's paw" doctrine is heading down the same path as older subdoctrines. And, as the courts continue to add more and more doctrines, the field is beginning to collapse on itself. The court-created doctrines collide with one another, creating questions that not only cannot be resolved in any principled way but also do not help us understand why discrimination exists or how to stop it. This is, in part, because the subdoctrines are so disconnected from the statutes' texts and purposes.

Finally, I show how the ancillary doctrines underestimate the complexity of the modern workplace and enshrine factual inferences that are not universally true. These problems are baked into all of the ancillary doctrines. Courts should abolish most, if not all, of the court-created ancillary doctrines and create a statement rule strongly discouraging courts from creating new ancillary doctrines in the future. I propose a way forward that relies on statutory text, Supreme Court caselaw relating to context, and values enshrined in the Federal Rules of Evidence and Federal Rules of Civil Procedure. These sources all caution judges to be careful about how much they know and can infer from a particular set of facts, and to judge evidence in its totality.

This Article proceeds as follows. Part I explores how the court-created doctrines do not provide a principled basis for judges to resolve even simple cases. Part II focuses on several ancillary doctrines and shows how each of these doctrines is removed from the text and purposes of the statute. Each doctrine has spawned its own set of terms of art, exceptions, and subdoctrines, which draw the courts into endless questions about how to interpret and apply the court-created doctrine. Part III discusses how a new ancillary doctrine, cat's paw theory, is prone to these same problems. Part IV explores how employment discrimination law is collapsing in on itself as courts are called upon to resolve conflicts between the ancillary doctrines. Part V shows how the ancillary doctrines contain mistaken factual inferences and underestimate the complexity of the American workplace. It proposes that courts abolish or diminish the ancillary doctrines and create a statement rule strongly discouraging courts from creating new ones.

1. THE DOCTRINES ARE INEFFECTIVE

   One way to test the effectiveness of the ancillary doctrines is to determine whether they help courts resolve cases. In the employment discrimination context, judges are often asked to determine whether it is proper to grant an employer summary judgment or whether there are enough factual disputes to allow the case to go to trial. This Part will demonstrate how even in the simplest kinds of employment discrimination cases, the ancillary doctrines are not effective.

   All of the ideas discussed in this Article ostensibly stem from the courts' interpretations of the federal discrimination statutes. Title VII is the cornerstone federal employment discrimination statute. Title VII prohibits an employer from discriminating against a worker because of race, sex, national origin, color, or religion. (6) Title VIPs main operative provision consists of two subparts. Under the first subpart, it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." (7)

   Under Title VII's second subpart, it is unlawful for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." (8) These two subparts form the foundation of Title VIPs text. (9) The Age Discrimination in Employment Act (ADEA) contains similar main language, (10) and the Americans with Disabilities Act (ADA) contains similar concepts, although not always stated in the same language. (11)

   One common scenario in discrimination law unfolds as follows. A supervisor refers to a worker using racist or sexist slurs or epithets. In some cases, the worker then uses the slurs or epithets as the basis of a harassment claim. In other cases, the worker uses the slurs or epithets to show that the supervisor took a negative action because of race or sex. Even though these are the most basic employment discrimination cases, it is difficult to predict whether such cases will go to jury trial or whether the court will grant summary judgment in the employer's favor.

   Take for example the following case. In Boyer-Liberto v. Fontainebleau Carp., a worker filed a racial harassment claim submitting evidence her supervisor called her "porch monkey" twice. (12) Although the judge did "not question that the term is highly offensive to African Americans," the judge found the isolated comments did not meet the required level of seriousness to count as harassment under federal law. (130 The judge used the "severe or pervasive" doctrine to grant summary judgment for the employer. (14)

   The "severe or pervasive" concept comes from the Supreme Court's opinion in Meritor Savings Bank, FSB v. Vinson, in which the Court recognized that sexual harassment is cognizable under Title VII. (15) In Meritor, the Supreme Court discussed whether the words "'terms, conditions, or privileges' of employment" encompass sexual harassment. (16) The Court stated that "[t]he phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment." (17) The Court continued: "[W]e agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." (18) Rather than using the statutory language to define the level of harm required to prevail under the harassment theory, the Court created a new term of art--"severe or pervasive." The Court stated that harassment affects the terms...