Pragmatism over politics: recent trends in lower court employment discrimination jurisprudence.

• Author: Reeves, Lee

INTRODUCTION I. THE LIMITS OF POLITICAL AFFILIATION AS AN EXPLANATORY VARIABLE IN EMPLOYMENT DISCRIMINATION CASES II. TOWARD A PRAGMATIC THEORY OF EMPLOYMENT DISCRIMINATION JURISPRUDENCE: AGGREGATE TRENDS IN WORKLOAD AND EMPLOYMENT DISCRIMINATION FILINGS A. Aggregate Trends in District Court B. Aggregate Trends in the Courts of Appeals C. Coping With the Workload: The Changing Nature of Docket Management D. The Particular Relevance of Employment Discrimination Claims to Judicial Workload III. WORKLOAD AND EMPLOYMENT DISCRIMINATION FILINGS ACROSS THE CIRCUITS A. Relative Workload Across Circuits B. Employment Filings Across Circuits IV. MANIPULATION OF SUBSTANTIVE LAW A. Defining Discrimination: What Constitutes an "Adverse Employment Action" for Purposes of Retaliation? B. Proving Discrimination: The Direct/Circumstantial Evidence Divide C. Proving Discrimination: Pretext v. Pretext-Plus V. MANIPULATION OF PROCEDURAL RULES A. Heightened Pleading Standards Under Rule 8 B. Relaxed Standards for Summary Judgment CONCLUSION INTRODUCTION

These are rough times for employment discrimination plaintiffs in federal court. Overtly discriminatory employment practices are largely a relic of the past, and direct evidence of discrimination is rarely available. The disappearance of the most obvious forms of discrimination has ushered in new challenges for employment discrimination plaintiffs. Plaintiffs today typically face the daunting prospect of ferreting out discrimination where, at least at first glance, none seemingly exists. In order to prevail, then, plaintiffs in most cases must expose as pretextual an employer's seemingly innocuous explanation for taking a contested adverse employment action. For their part, judges have been increasingly reluctant to wade into this he-said, she-said quagmire. Over the last twenty-five years, federal district and appellate judges have interposed a variety of substantive and procedural obstacles making it more difficult for plaintiffs to prevail in employment discrimination cases. Why they have done so is a matter of considerable debate.

Many scholars have argued that the judiciary's decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the judiciary has become more ideologically conservative. (1) Proponents of this position note that the Republican Party has won seven of the ten presidential elections since Title VII's inception, and therefore conclude that the judiciary's recent skepticism of employment discrimination claims stems from the fact that the federal bench has become increasingly composed of persons who are, on the whole, inclined to take a dim view of employment discrimination claims. I seek to dispute that hypothesis as incomplete at best and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit's employment discrimination jurisprudence is influenced by two factors, total workload per judge and employment discrimination filings per judge. At the very least, ends-oriented, ideological considerations are insufficient to explain the broader body of lower court employment discrimination jurisprudence over the past twenty-five years.

This Article has five parts. After considering empirical evidence, Part I concludes that judges' political ideology plays only a limited role in their decision-making. Part II identifies the increase in case filings over the last two decades as a likely non-ideological cause of the increased judicial skepticism towards claims of employment discrimination. This Part begins by examining aggregate trends in the district and appellate caseload and then translates caseload into the more meaningful metric of workload. Part II next evaluates various steps courts have taken to handle these workload increases. Finally, Part II concludes with a discussion of why employment discrimination claims are particularly taxing on the lower federal courts.

Part III identifies two factors that appear to influence how receptive a given circuit is towards claims of employment discrimination: overall workload and the number of employment filings. This Part then examines the relative workloads of the courts of appeals and the district courts within a given circuit, as well as the number of employment discrimination filings across the circuits. Part III concludes that there are vast differences between the circuits in terms of both of these factors.

Parts IV and V compare the various approaches that the circuits have taken to some of the issues that commonly arise in employment discrimination cases. Together, these parts conclude that a circuit's interpretation of relevant statutory and procedural provisions correlates with its workload and the number of employment filings it handles. More precisely, these sections demonstrate that on balance, circuits with heavier workloads and greater numbers of employment discrimination filings have interpreted substantive law and procedural rules in a manner that is less receptive to employment discrimination claimants than have their counterparts in circuits with lesser workloads and fewer employment discrimination filings. The Article concludes with a few brief observations about the significance of the recent volume of employment discrimination claims as well as the prospect of reform.

1. THE LIMITS OF POLITICAL AFFILIATION AS AN EXPLANATORY VARIABLE IN EMPLOYMENT DISCRIMINATION CASES

   During its 1988 Term, the Supreme Court issued five decisions that sharply curtailed the ability of plaintiffs to prevail in employment discrimination cases. (2) These decisions collectively capped a decade-long repudiation of pro-plaintiff doctrine that lower courts developed during the early days of Title VII. (3) First adopted in the 1960s and 1970s by the Fourth and Fifth (4) Circuits, this so-called "southern jurisprudence" referred to courts' practice of construing procedural rules--most notably summary judgment--liberally in employment discrimination cases to give plaintiffs a better chance to prevail. (5) The message running through this quintet of Supreme Court opinions was, in essence, that enough was enough. Courts should not tilt the playing field in the employee's favor, as it was no longer valid to presume that an adverse employment action resulted from unlawful discrimination.

   Because several of the Court's opinions were sharply divided along perceived conservative-liberal fault lines, many commentators concluded that these decisions were part of the federal judiciary's larger ideologically-motivated campaign to roll back anti-discrimination laws (at least in the employment context). (6)

   Congress's reaction to the Supreme Court's 1989 decisions was swift and decisive, and did nothing to dispel the notion that the battle over employment discrimination was political in nature. In the two years that followed, Congress twice passed bills to nullify the Supreme Court's employment discrimination decisions. (7) President George H.W. Bush signed the latter of these two bills--the Civil Rights Act of 1991--into law. The political undertones of this interbranch tussle were not lost on observers. In each case, a slim majority of the Supreme Court, composed largely of justices appointed by Republican presidents, had issued in quick succession a spate of decisions uniformly unfavorable to employment discrimination plaintiffs over the dissent of the other four justices, most of whom were appointed by Democratic presidents. Thereafter, a Democratically-controlled Congress legislatively overruled these decisions, restoring various protections that the Supreme Court's decisions had stripped away.

   Given this back and forth between Congress and the Court, it was a short analytical leap for many commentators to conclude that the federal judiciary's increasing skepticism of employment discrimination claims was ideologically motivated. Their argument has two parts. As a general matter, Democrats are liberals, and liberals are in favor of a broad construction of employment discrimination laws. Conversely, Republicans are conservatives, and conservatives generally favor a more narrow or literal interpretation of employment discrimination laws. Accepting these generalizations, as the ratio of Republican to Democratic judicial appointees has risen in recent years, the judiciary as a whole has become increasingly skeptical of employment discrimination claims.

   This "partisan entrenchment" argument (8) is premised on several assumptions, at least three of which are shaky. The first problematic assumption is that all Democratic and Republican appointees are ideologically fungible. The use of the political affiliation of the nominating president as a proxy for each judge's ideology is undoubtedly crude, as many nominees of both parties have views that do not toe the party line, so to speak. (9) Moreover, the party line itself may change. That is, even to the extent that a judge's views do conform to the political ideology of the nominating president, the ideology of a given president may differ from other presidents from the same party. (10) For these reasons, it is not at all clear that the political affiliation of a judge is a reliable predictor of how that judge will vote in every case.

   The second dubious assumption is that a judge's ideology does not change over time. While many judges insist that their views had not changed during their tenure on the bench, (11) empirical evidence supports a different conclusion. In a recent study of the twenty-six justices who have served on the Supreme Court for ten or more terms since 1937, all but four exhibited some degree of ideological drift during their tenure. No consistent pattern of change emerged: Twelve justices became more liberal, seven became more...