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
A. Aggregate Trends in District Court
B. Aggregate Trends in the Courts of Appeals
C. Coping With the Workload: The Changing Nature of Docket
D. The Particular Relevance of Employment Discrimination Claims to
III. WORKLOAD AND EMPLOYMENT DISCRIMINATION FILINGS ACROSS THE
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
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
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. …