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In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment discrimination cases tend to be ill-suited for summary judgment because they usually involve intent issues, which are ill-suited for summary adjudication. In addition, they involve claims of discrimination, which can be more difficult to resolve on summary judgment than at trial because of issues related to implicit bias.

The article is a part of the Nevada Law Journal’s Symposium on the 50th Anniversary of Title VII. The entire symposium is worth a read, with contributions addressing subjects including harassment, retaliation, and employer policies on using employee criminal records. Indeed, some of the other articles also qualify as TWELL (things we love lots).

I like this article because it is a tightly argued piece that explores the interplay between substance and procedure. Many scholars rightly worry about whether legislatures have passed appropriate laws and whether courts are interpreting the substance of those laws correctly. However, whether justice is done depends on the right laws being interpreted correctly and enforced properly. The enforcement step matters just as much as the other steps, and possibly more, as the public may stop paying attention once laws are passed and appear to be interpreted properly.

Professor Beiner addresses an issue that is not new—the willingness of federal courts to grant summary judgment in employment discrimination cases—but does so in a fresh way. Often, scholars simply lament that courts seem overly willing to grant summary judgment in employment discrimination cases. However, Beiner goes deeper. Using the Torgerson court’s assertion as a starting point, Professor Beiner explains that while the court was technically correct that no rule requires that employment discrimination be treated as poor candidates for summary judgment, the nature of most employment discrimination cases makes them poor candidates. Employment discrimination cases tend to involve employer intent. Even though intent issues and other issues of fact can be decided on summary judgment when appropriate, courts have often viewed intent and motive issues as more difficult to determine on summary judgment than other issues. Discerning a defendant’s intent with certainty may require that factfinders make credibility determinations and inferences—decisions that cannot appropriately occur at summary judgment. The nature of the inquiry involved in most employment discrimination cases, not the fact that they are employment discrimination cases, makes these cases poor candidates for summary judgment.

Beiner then surveys courts’ approaches to the issue. Some courts grant summary judgment in employment discrimination cases, even as they suggest caution when doing so. Some courts suggest no particular caution should be taken with respect to employment discrimination cases and appear to require a higher bar for employment discrimination plaintiffs than necessary to create a genuine issue of material fact. Other courts appear confused in that they suggest that employment discrimination cases are not good candidates for summary judgment, then grant summary judgment on bases that seem insufficient given the courts’ concerns.

After surveying the different approaches that courts take, the article discusses both how psychology, bias and judicial decisionmaking may explain the differing approaches and why sensitivity to those issues is necessary. It notes that judicial bias against employment discrimination cases may explain how and why judges use summary judgment to dispose of employment discrimination cases that might be meritorious, but also notes that the issue is more complicated than the mere presence of possible judicial animus. Judges and other people have implicit biases that may guide their decisionmaking whether they want those biases to do so or not. Implicit bias can help explain why good-intentioned people, including judges, may fail to discern discrimination when discrimination has occurred. Such bias is particularly problematic when factual uncertainty exists because even though many with implicit biases can discern discrimination when the facts are clear, they may rely on implicit biases against finding discrimination when the facts are unclear. Factual uncertainty regarding an employer’s intent to discriminate may be more likely to exist when a party has moved for summary judgment and a decision is made on the motions than at trial where a factfinder may have an opportunity to analyze the motivation of the employer’s decisionmaker. That makes implicit bias a particularly serious concern regarding employment discrimination cases that may be decided on summary judgment.

The concern is particularly troublesome because employment discrimination doctrine does not incorporate insights from implicit bias research. Employment discrimination doctrine suggests that an employer’s mental processes are transparent and can be evaluated relatively easily. Conversely, research on implicit bias suggests that an employer’s mental processes are often opaque. Though a trial will not necessarily make an opaque mental process clear, it is more likely to make an opaque mental process clear than summary judgment papers will. Consequently, Professor Beiner concludes that discrimination doctrine ought to take the teachings of cognitive psychology and implicit bias into account before courts determine that employment discrimination cases that typically involve intent issues are just as reasonably decided at summary judgment as other cases.

The article analyzes a seemingly uncontroversial assertion from a court—that employment discrimination cases should not be treated as particularly poor candidates for summary judgment —and explains that not only is the assertion misleading in context, the mindset and doctrine that underlie the assertion may stunt the proper application of employment discrimination law. The article is relatively short, but is packed with thoughts. It is well-researched, but not unduly larded with citations.

I have worked in this vineyard for years. Many commentators have written interesting articles about how procedure combines with doctrine to support or harm employment discrimination claims. With her article, Professor Beiner takes a fresh look at a mixed issue of procedure and substance through a psychological lens. In the process, she explains once more, but with new insight, why courts that are eager to grant summary judgment in employment discrimination cases should not be. That is excellent legal scholarship and is a thing I love lots.

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Cite as: Henry L. Chambers, Jr., Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases, JOTWELL (January 13, 2015) (reviewing Theresa M. Beiner, The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, 14 Nev. L.J. 673 (2014)),