Pragmatism over Politics: Recent Trends in Lower Court Employment Discrimination Jurisprudence

By Reeves, Lee | Missouri Law Review, Spring 2008 | Go to article overview

Pragmatism over Politics: Recent Trends in Lower Court Employment Discrimination Jurisprudence


Reeves, Lee, Missouri Law Review


 
INTRODUCTION 
 
I. THE LIMITS OF POLITICAL AFFILIATION AS AN EXPLANATORY VARIABLE IN 
EMPLOYMENT DISCRIMINATION CASES 
 
II. TOWARD A PRAGMATIC THEORY OF EMPLOYMENT DISCRIMINATION 
JURISPRUDENCE: AGGREGATE TRENDS IN WORKLOAD AND EMPLOYMENT 
DISCRIMINATION FILINGS 
 
    A. Aggregate Trends in District Court 
    B. Aggregate Trends in the Courts of Appeals 
    C. Coping With the Workload: The Changing Nature of Docket 
    Management 
    D. The Particular Relevance of Employment Discrimination Claims to 
    Judicial Workload 
 
III. WORKLOAD AND EMPLOYMENT DISCRIMINATION FILINGS ACROSS THE 
CIRCUITS 
 
    A. Relative Workload Across Circuits 
    B. Employment Filings Across Circuits 
 
IV. MANIPULATION OF SUBSTANTIVE LAW 
 
     A. Defining Discrimination: What Constitutes an "Adverse Employment 
     Action" for Purposes of Retaliation? 
     B. Proving Discrimination: The Direct/Circumstantial Evidence 
     Divide 
     C. Proving Discrimination: Pretext v. Pretext-Plus 
 
V. MANIPULATION OF PROCEDURAL RULES 
 
     A. Heightened Pleading Standards Under Rule 8 
     B. Relaxed Standards for Summary Judgment 
 
CONCLUSION 

INTRODUCTION

These are rough times for employment discrimination plaintiffs in federal court. Overtly discriminatory employment practices are largely a relic of the past, and direct evidence of discrimination is rarely available. The disappearance of the most obvious forms of discrimination has ushered in new challenges for employment discrimination plaintiffs. Plaintiffs today typically face the daunting prospect of ferreting out discrimination where, at least at first glance, none seemingly exists. In order to prevail, then, plaintiffs in most cases must expose as pretextual an employer's seemingly innocuous explanation for taking a contested adverse employment action. For their part, judges have been increasingly reluctant to wade into this he-said, she-said quagmire. Over the last twenty-five years, federal district and appellate judges have interposed a variety of substantive and procedural obstacles making it more difficult for plaintiffs to prevail in employment discrimination cases. Why they have done so is a matter of considerable debate.

Many scholars have argued that the judiciary's decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the judiciary has become more ideologically conservative. (1) Proponents of this position note that the Republican Party has won seven of the ten presidential elections since Title VII's inception, and therefore conclude that the judiciary's recent skepticism of employment discrimination claims stems from the fact that the federal bench has become increasingly composed of persons who are, on the whole, inclined to take a dim view of employment discrimination claims. I seek to dispute that hypothesis as incomplete at best and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit's employment discrimination jurisprudence is influenced by two factors, total workload per judge and employment discrimination filings per judge. At the very least, ends-oriented, ideological considerations are insufficient to explain the broader body of lower court employment discrimination jurisprudence over the past twenty-five years.

This Article has five parts. After considering empirical evidence, Part I concludes that judges' political ideology plays only a limited role in their decision-making. Part II identifies the increase in case filings over the last two decades as a likely non-ideological cause of the increased judicial skepticism towards claims of employment discrimination. This Part begins by examining aggregate trends in the district and appellate caseload and then translates caseload into the more meaningful metric of workload. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Pragmatism over Politics: Recent Trends in Lower Court Employment Discrimination Jurisprudence
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.