Friday, December 20, 2013
Mike Zimmer (Loyola - Chicago) just posted on SSRN his article (forthcoming U. Chicago Legal Forum) Title VII's Last Hurrah: Can Discrimination Be Plausibly Pled?. Here's the abstract:
The Roberts Supreme Court appears to be somewhat schizophrenic in how it approaches antidiscrimination law. One recent decision, Ricci v. DeStefano, involves a potentially expansionist development making proof of intent to discriminate, a key element in most antidiscrimination cases, simply a question of fact of whether the employer was aware of the racial (or gender) consequences of its action. Other decisions push Title VII cases out of court into arbitration, further complicate procedural law and diminish the scope of substantive protections of the law, thereby making Title VII cases that remain in court more difficult to bring as class actions or to advance even individual cases beyond the pleading stage of litigation. Given the breadth of the onslaught against a robust antidiscrimination jurisprudence, it appears likely that the thrust limiting antidiscrimination law will win out over the alternative expansionist approach that would follow the application of Ricci to disparate treatment discrimination cases beyond “reverse” discrimination claims. If that is true, the Supreme Court will be bringing to an end the availability of Title VII to help redress our society’s longstanding and continuing problems of employment discrimination.
This paper argues for the extension of the simplified proof standard of what constitutes intent to discriminate and for the acceptance at the pleading stage of discrimination cases of social science research, including implicit bias studies, that show why discrimination persists. Establishing a more realistic set of background assumptions about that persistence would assist judges making the plausibility finding necessary for discrimination claims to survive motions to dismiss. These two paths seem to be what the Court has so far left open so that the antidiscrimination project can continue to have some life.