Justices’ Textualist Bent Risks Rigid View of Job Bias Doctrines

A Supreme Court decision invalidating an extra bias-proof requirement for nonminority workers, and its concurring opinion questioning the utility of a 50-year-old evidentiary framework, jeopardize similar employment law rules and doctrines.

Whether the “background circumstances” test the court unanimously rejected last month in Ames v. Ohio Department of Youth Services is similar enough to other tests recurringly cited in workplace bias cases to do so is debated. The debate includes whether these other “judge-made” rules are being applied so rigidly they’re regularly determining outcomes and whether they’re what Justices Clarence Thomas and Neil Gorsuch had in mind in their Ames concurrence voicing renewed support for revisiting 1973’s McDonnell Douglas burden-shifting paradigm.

Litigants, especially workers, will push the justices to weigh in on the same-actor inference, stray-remarks doctrine, and other tests and, even more so, McDonnell Douglas itself, lawyers familiar with Ames mostly agree. But perspectives are mixed on the potential impact of the Supreme Court stepping in.

Ames cited Title VII of the 1964 Civil Rights Act’s plain text in finding the statute didn’t support the requirement in some circuits that members of a majority class must show their employer is the rare one that discriminates against nonminorities. That “textualist” approach by the current justices was similarly on display in other recent rulings, and their reasoning leaves dozens of long-used McDonnell Douglas-based ancillary doctrines open to challenge, Indiana University law professor Deborah Widiss and the University of Missouri law school’s Sandra Sperino said.

The other tests include an inference that arises if the plaintiff and decision-maker belong to the same protected class and a rule triggered when an employer honestly believed its justification for taking adverse action even if it turns out to be wrong.

They frequently operate as hurdles a worker must clear just to survive summary judgment even though they’re not based on statutory requirements, Widiss said.

The main problem “is making something that might be true in one case, a universal legal standard,” Sperino said. When done by appeals courts, it improperly constrains trial judges, she said.

Ames Was Different

Paul Hastings LLP’s Kenneth W. Gage said things like the same-actor inference and honest-belief rule are different than the background-circumstances requirement at issue in Ames.

A judge can draw conclusions based on the evidence, including that bias wasn’t a motive where the same person both hired someone knowing their protected class and later fired them. Depending on the other evidence and absent something pointing toward discrimination, that’s logically intuitive and fits within the basic question of whether a jury could find for the plaintiff, he said.

But Ames was about some courts imposing an extra requirement just on certain workers, Gage said. Other tests aren’t typically requirements and can apply to anyone. That’s a big distinction, he said.

Widiss and Sperino said that, like McDonnell Douglas itself, these other doctrines are often applied rigidly and affect lots of cases.

Most of them work against the plaintiff, Sperino said. When stated in a way that makes them appear to involve questions of law, they hide that judges are actually assessing the facts, which in many instances is contrary to the summary judgment standard, she said.

Creating the impression that they’re strictly followed tends to water down a plaintiff’s evidence by disaggregating it, especially where more than one of these tests is applied in a given case, causing courts not to look at the proof as a whole, the professors said.

Rigidity Faulted, Waning

Courts’ usage of labels such as “doctrines” and “rules” can lead to more-rigid application of these tests, Hunton Andrews Kurth LLP’s Juan C. Enjamio said. But very few courts apply them in an outcome-determinative way anymore, he said.

And we’ll likely see fewer and fewer rigid applications as circuit judges realize that approach may not survive in the Supreme Court, Enjamio said.

The desire to avoid billing any of these things as special exceptions or rules rather than just part of the evidence for determining whether bias occurred “makes sense as far as it goes,” Beal Sutherland Berlin & Brown LLC’s Brian J. Sutherland said. But he’s skeptical that less-defined ways for assessing which cases should go to trial will benefit plaintiffs, he said.

Sutherland, who represented the plaintiff in the justices’ landmark 2020 LGBTQ+ bias ruling, Bostock v. Clayton County, questions whether it would be a good thing to do away with McDonnell Douglas, especially if the various sub-tests or “wrinkles” are left as is.

“If we come to an analysis that’s more of a totality-of-the-circumstances” approach, that could mean these rules and the inferences or presumptions they raise will play a larger role, making cases less predictable, he said.

He’s critical of McDonnell Douglas’ rigidity, “but at least I know what I need to do” to get a case before a jury, Sutherland said.

Challenges Coming

The consensus is that the justices will likely be asked to review one or more of the various sub-tests and McDonnell Douglas overall.

Litigants on both sides will challenge doctrines that interfere with their chances to prevail, Widiss said, adding it would be better to apply the rules of evidence than short-hand doctrines that distract from the ultimate question of bias.

The court at some point probably will, and probably should, weigh in and provide clarity on whether and how McDonnell Douglas applies at summary judgment, but it wouldn’t be particularly helpful for it to address the various other evidentiary tests, Gage said.

Enjamio doesn’t foresee a dramatic difference in case analyses or outcomes one way or the other.

Whether they’re labeled as rules or doctrines or not, traditional evidentiary principles still apply, so the same evidence will come in and the results will “end up being more or less the same in every case.”