Tuesday, July 8, 2008

Alito: Sheridan v. DuPont

(This is the third in our series of posts on Justice Samuel Alito. Read the first two posts here and here.)

When we last encountered Samuel Alito, he'd just become Deputy Assistant to Attorney General Edwin Meese after having written a job application memo characterizing his opposition to Warren Court precedents and Roe v. Wade as touchstones of his legal philosophy.

In 1987, Alito left the Attorney General's office to become a United States Attorney in New Jersey, and in 1990 he was nominated by President Bush to a seat on the US Court of Appeals for the Third Circuit.

He remained on the Third Circuit for 16 years, writing hundreds of opinions along the way. And, needless to say, his tenure on the court provides ample evidence of his legal approach.

When Alito was nominated to the Supreme Court, many of these cases should have been--and were--red flags to senators evaluating his record. And perhaps a dozen of his opinions received significant media scrutiny.

We'll look at just three of his most important and salient opinions, on the assumption that these three would surely have made it onto the radar of Sen. Collins and her staff in the weeks leading up to the Alito vote.

Here we'll tackle Sheridan v. DuPont. We'll look at two other cases in later posts.

Sheridan v. DuPont [link]

The background: Barbara Sheridan, an employee of the Hotel DuPont, accused the company of sex discrimination for failing to promote her; and for then making her life miserable and demoting her because of her complaints.

The question: One issue in the case was how much proof of employer misconduct a plaintiff should be required to produce to avoid having her case thrown out.

Should it be enough, for example, for a plaintiff to cast doubt on a defendant's story? Or should an accuser need explicit evidence of discrimination in order for the case to be heard?

As Yale Law professor Robert Gordon explains:

This sounds like a technical quarrel, but it's not. Employees can rarely prove intentional discrimination directly, because companies don't keep records with smoking guns in them. Courts have to infer discrimination--and giving fake evidence about why someone is fired, under traditional law, is enough to get the case past dismissal.
The decision: Ten of the court's eleven members--including eight Republican appointees--embraced what Gordon calls the "traditional law" conception, citing a Supreme Court precedent which noted that, "there will seldom be 'eyewitness' testimony as to the employer's mental processes." They found that when doubt about a defendant's story has been raised, the case should go to trial.

But not Alito. In a lonely 7248 word dissent that argued for a more complicated standard than the one adopted by the court, he rejected the "doubt" threshold as too low in some instances. He maintained, instead, that just because an employer has made up a story doesn't mean a plaintiff should get a day in court.

In short, his argument seemed designed to give lying employers a second, fallback path to a quick legal victory; the other ten judges were making it too easy for discrimination claims to be heard.

The reaction: A post-nomination Alito profile from Knight Ridder noted that, "Alito's interpretation [in Sheridan v. Dupont] would have led to a fundamental change in the way sex discrimination claims are handled and would have conflicted with what Congress intended when it enacted anti-discrimination laws."

Business Insurance, an insurance industry trade publication opened its analysis of the Alito nomination by forecasting:

If what's past is prologue, US Appeals Court Judge Samuel A. Alito Jr.'s elevation to the Supreme Court could be good news indeed for employers.
The article quoted experts on both sides of the Alito nomination agreeing that, in the context of Sheridan v. Dupont and other cases, "employers likely face a more sympathetic ear given Judge Alito's generally pro-government, pro-business views."

The Alliance for Justice complained about Alito's "cramped" reading of the Civil Rights Act of 1964. NOW concluded that Sheridan made it clear Alito, "would add difficult evidentiary hurdles for women who sue for sex discrimination."

The AFL-CIO cited the case as key evidence in concluding that, "Alito has consistently sided against working Americans."

And so forth.

If Sen. Collins has ever weighed in on Alito's Sheridan v. Dupont dissent, we're not aware of it.

UPDATE: Worth noting that, ultimately, the Supreme Court unanimously rejected Alito's position--and embraced the "traditional law" conception--in Reeves v. Sanderson Plumbing Products in 2000.

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