Wednesday, July 5, 2006

Judge Posner Seeks to "Lay Title VII Dictum to Rest"

Posner2_1 Thanks to Robert Loblaw and his Decision of the Day Blog for pointing out to me this interesting opinion from the 7th  Circuit Court of Appeals (Forrester v. Rauland-Borg Corp., No. 05-4650 (7th Cir. June 29, 2006), in which Judge Posner (pictured left) seeks to establish once and for all what is, and what is not, the appropriate standard for proving discrimination in a Title VII pretext case.

In sum, Robert explains:

[S]everal Seventh Circuit decisions . . . have stated in dicta that pretext can also be proved by showing that the stated [employer] reason [for the adverse employment action] was "insufficient to motivate" the challenged conduct.

Judge Posner believes that this is incorrect, and that this unfortunate dictum has motivated many appeals that are doomed to failure. So he uses this decision affirming summary judgment for the employer as a chance to "lay this dictum to rest" and, hopefully, curb lots of future Title VII appeals. (Not likely.)

Lest you think that Judge Posner is acting out of line in singlehandedly reshaping Seventh Circuit law, he did circulate his draft decision to the rest of the Court and none of his colleagues requested rehearing en banc.

More specifically, Judge Posner writes this about the "insufficient to motivate" standard (also adopted in the 6th Circuit):

It adds nothing to the analysis of pretext but confusion. If the stated reason for the challenged action did not motivate the action, then it was indeed pretextual. If it was insufficient to motivate the action, either this means that it didn’t motivate it, or that it shouldn’t have motivated it.

If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the
dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated
reason, but simply whether the stated reason was his reason: not a good reason, but the true reason.

Splitting hairs or a necessary clarification? 

And procedurally, because Judge Posner circulated this opinion prior to publication and apparently no judge in active service voted to hear the case en banc, does that mean that this panel decision now trumps all contrary, previous 7th Circuit panel decisions in this area?


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If my memory is correct,Paul is right: the Seventh Circuit, contrary to most other courts, treats the most recent of two conflicting decisions to be controlling because of the procedure that he describes.


Posted by: Jeff | Jul 5, 2006 9:33:50 AM

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