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Nancy Gertner, The Judicial Repeal of the Johnson/Kennedy Administration's ‘Signature’ Achievement (forthcoming, 2014), available at SSRN.

The extensive research showing that employment discrimination plaintiffs fare significantly worse than plaintiffs in other kinds of cases in federal court at every possible stage of litigation is well known at this point. Scholars like Ted Eisenberg, Kevin Clermont, and Stewart Schwab have thoroughly documented the disparity. Building from this work, other scholars have focused on why employment discrimination cases are different. Some have chalked the change up to changes in employer behavior, labeling current forms of discrimination “subtle” rather than “overt.” Others have mapped doctrinal drift between the goals of the statutes when they were initially enacted and their current applications. Still others have linked the drift and plaintiffs’ disproportional losses to the liberal use of summary judgment and the change in rules to pleading standards under Twombly and Iqbal. Most scholars are able only to theorize on the causes as they document these changes, but Nancy Gertner, a Professor of Practice at Harvard and former United States District Court Judge, has offered important new insights on why it is that employment discrimination cases fare worse than other kinds of cases.

Judge Gertner’s most recent article on the subject is The Judicial Repeal of the Johnson/Kennedy Administration’s Signature Achievement. In it, she identifies five potential causes of this phenomenon: 1) judges may believe that discrimination doesn’t exist anymore; 2) more discrimination cases are frivolous; 3) good cases are taken to state courts because state law is less employer friendly; 4) the Supreme Court has narrowed the law in a way that protects employers; and 5) the pressures on judges create and perpetuate biases against these cases. Based on her own experiences and others’ studies of judicial decisions, Gertner concludes that ideology, particularly as communicated by the Supreme Court in its decisions, plays some role, but that the greatest cause of the disparity is the pressure on judges to manage their caseloads and the ways that the effects of those pressures magnify the ideological factors.

Judge Gertner’s article builds on two of her prior articles, Losers’ Rules, and with Elizabeth M. Schneider, “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases. The core contention in these three works revolves around how case management practices are driving a wholesale abandonment of the antidiscrimination project.

First, judges are encouraged to resolve cases without trials and to write decisions only when absolutely necessary. Because a grant of dismissal or judgment disposes of at least part of a case, those decisions must be written and must explain the decision’s rationale. So decisions are written only when plaintiffs lose. That means, the only decisions available to be read are decisions explaining what is wrong with plaintiffs’ cases, which creates and reinforces judges’ implicit biases about the merit of employment discrimination cases. As Judge Gertner notes, “[i]f case after case recites the facts that do not amount to discrimination, decisionmakers have a hard time imagining the facts that comprise discrimination.”

In addition, courts have developed decision-making heuristics for employment discrimination cases, which are employed in only one direction to avoid false positives—wrongful accusations of discrimination. Those heuristics become precedent and then supplant the law themselves. One particularly vivid illustration of such a heuristic is the “stray remarks” doctrine, which trivializes sexist and racist speech. This doctrine arose as a way to distinguish direct evidence of discriminatory motive from circumstantial evidence, with a particularly narrow view of direct evidence. Only if no inference at all was required to link the plaintiff’s protected class with the decision—I am not hiring you because you are black or female—would the evidence be direct. Anything else would be a “stray” remark. This heuristic has been employed in such a way that now, explicitly gendered or race-linked speech is not considered evidence of discrimination or constitutive of harassment at all by judges in the summary judgment stage. Conversely, when juries hear that this kind of language was used, they have ruled for plaintiffs and awarded large damages.

To counter these structural pressures on the substance of the law and consequent self-perpetuating spiral away from the goals of the employment discrimination statutes, Judge Gertner makes several suggestions. Congress could amend Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA) as it has the Americans with Disabilities Act (ADA),  using language more broad and cabining judicial discretion. Scholars could monitor judicial decisions, like one study of decisions from the Northern District of Georgia, showing that summary judgment was granted for defendants on at least one issue in 95% of cases, in an effort to reveal to judges their own patterns. Judge Gertner herself is currently undertaking a larger study like that one. Finally, an enforcement scheme that doesn’t rely on the federal courts might be worth exploring.

Judge Gertner is not the only person with federal judicial experience writing about how the system is broken for employment discrimination cases. She is joined by Judge Mark W. Bennett, whose article Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective agrees that these structural pressures are having an effect, and by Judge David F. Hamilton, whose Address to the Association of American Law Schools, Section on Employment Discrimination Law at the 2013 Annual Meeting, On McDonnell Douglas and Convincing Mosaics: Toward More Flexible Methods of Proof in Employment Discrimination Cases, 17 Emp. Rts. & Emp. Pol’y J. 195 (2013) agrees and offers the Seventh Circuit’s standard as an antidote. The work of all three should confirm for the rest of us that we are right to continue to be concerned about the way employment discrimination cases are treated by the judiciary and inspire us to work more effectively toward solutions.

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Cite as: Marcia L. McCormick, On Managerial Justice and the Anti-Discrimination Project, JOTWELL (June 16, 2014) (reviewing Nancy Gertner, The Judicial Repeal of the Johnson/Kennedy Administration's ‘Signature’ Achievement (forthcoming, 2014), available at SSRN),