In Bias Cases, Gorsuch Subpar for the Course

      Senate Democrats and their progressive advocacy group allies tried but failed to block Neil Gorsuch's confirmation as Supreme Court justices by accusing him of being insensitive to workers' and consumers' rights. They used as exhibit number one the case of the frozen trucker fired for leaving his rig behind rather than wait for emergency help in subzero weather. They also faulted several of Gorsuch's decisions or dissents that they said reflected insensitivity to racial or other forms of discrimination.
      Now, two law professors well versed in employment law cases are showing that Gorsuch's record, as depicted by his opponents, is just about par for the course. In their new book Unequal: How America's Courts Undermine Discrimination Laws, authors Sandra F. Sperino and Suja A. Thomas document the ways that federal judges have dashed the hopes embodied in federal civil rights laws for equal opportunity in U.S. workplaces nationwide.
      Starting from laws that have many built-in advantages for employers, judges have made it that much harder for workers complaining of discrimination by a set of procedural hurdles and substantive rulings narrowing the definition of discrimination. "Courts have limited the scope of discrimination law by refusing to call lots of conduct discrimination," Sperino and Thomas write.
      Gorsuch's record, as depicted by the progressive Alliance for Justice, fits this description like a glove. From Gorsuch's 10 years on the Tenth U.S. Circuit Court of Appeals, the group pulled half a dozen in which Gorsuch voted usually in the majority and once in dissent against job discrimination claims under Title VII of the Civil Rights Act.
      In separate sex discrimination cases, for example, Gorsuch voted once in the majority and once in dissent to keep the plaintiff's claims from juries. In two others, Gorsuch voted against giving plaintiffs the benefit of subsequent favorable Supreme Court precedents with the majority. Three of the cases included retaliatory discharge claims: complaints that the Supreme Court has said are important to enforcing anti-discrimination laws but that Gorsuch dismissed in each of the cases.
      The record "demonstrates a repeated pattern of siding with corporations over individuals trying to assert their rights under anti-discrimination laws," the Alliance for Justice report stated. "Judge Gorsuch routinely refuses to allow cases to go to a jury even when there are material disputes of fact about the circumstances surrounding an adverse employment action."
      Sperino, a law professor at the University of Cincinnati, and Suja, a law professor at the University of Illinois, have found a bookful of cases like these going back over decades. In side-by-side summaries, for example, they recount two sexual harassment claims that judges blocked from going to juries, each of them backed up with a dozen or so particulars. In one, an appellate court upheld the dismissal of the female employee's case because her male supervisor touched her only three times. In the other, the trial judge rejected a male employee's claim against his male supervisor even though the supervisor made two or three sexual remarks per day over a 10-day period.
      Race-related claims are also susceptible to dismissals even in the face of seemingly blatant evidence of racism. An appellate court threw out jury verdicts in favor of two African American employees with an opinion that dismissed supervisors' references to them as "boy" as "not probative of racial animus." Suja, it should be noted, is a strong defender of the jury system, as set out at length in her book published last year, The Missing American Jury.
      Sperino and Suja open the new book by noting that federal employment discrimination laws were not designed for plaintiffs as much as for employers. To start, Title VII requires a plaintiff to go first to the Equal Employment Opportunity Commission (EEOC) rather than straight to court. In addition, the law sets a very short 300-day statute of limitations for bringing a complaint — in contrast to the two-year deadline common for other personal injury suits. And the law sets limits on damages, unique to employment discrimination cases.
      A cobweb of court-created doctrines tilts the playing field further in employers' favors. Courts allow employers to explain racist or sexist comments as "stray remarks." A supervisor who hires an employee may be absolved of a later accusation of discrimination by the "same-actor inference." Some judges even reject discrimination claims if the employer can show an "honest belief" that the complained-of adverse action was not infected with prejudice.
      Sperino and Suja do not mention Gorsuch in their book nor do they name names of any of the judges they fault for undermining discrimination laws. They do note, however, that the federal judiciary is far less diverse than juries or the U.S. population at large. They cite a study that found that judges grant 70 percent of summary judgment motions filed by employers. Another found that plaintiffs' verdicts in discrimination cases are more likely to be reversed on appeal than verdicts in other kinds of civil cases.
      As Sperino and Suja tell the story, the Supreme Court has been less unfriendly to discrimination claims than the lower courts. In that case, Gorsuch's vote may not matter that much. Indeed, they close with a laundry list of semi-technical changes that Congress could enact to ensure courts give discrimination claims a full and fair hearing. In Trumpland, however, workers with discrimination claims are quite likely to remain forgotten.