Article of Interest: Diversity and Discrimination: A Look at Complex Bias by Minna Kotkin

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Back in September, I posted an entry about the Seventh Circuit’s failure to recognize a “sex plus” or “gender plus” theory of discrimination in its recent opinion in Coffman v. Indianapolis Fire Dept., 2009 WL 2525762 (7th Cir. 2009), a case in which a firefighter claimed that she was intentionally discriminated against based upon her gender plus her height. The Seventh Circuit failed to recognize this theory because it found that the plaintiff did not develop her “sex plus” argument, a conclusion I found nonsensical at the time because “[t]he term ‘sex plus’ or ‘gender plus’ is simply a heuristic…developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.”

If we think about this for a second, it makes sense. There could easily be discrimination at a fire station against short female firefighters but not against all female firefighters. There could easily be discrimination at a law firm against female African-American attorneys but not against all female attorneys. Indeed, common sense would tell us that the more “different” a worker is, the more likely she will encounter bias, meaning that “sex plus” claims should enjoy more success than “bare” gender discrimination claims.

In her excellent recent article in the William and Mary Law Review, Diversity and Discrimination: A Look at Complex  Bias, 50 Wm. & Mary L. Rev. 1439 (2009), however, Brooklyn Law School Professor Minna Kotkin concludes that just the opposite is true and that the heuristic is not working.  According to Professor Kotkin,

Despite the common sense notion that the more “different” a worker is, the more likely she will encounter bias, empirical evidence shows that multiple claims-which may account for more than 50 percent of federal court discrimination actions-have even less chance of success than single claims. A sample of summary judgment decisions reveals that employers prevail on multiple claims at a rate of 96 percent, as compared to 73 percent on employment discrimination claims in general. Multiple claims suffer from the failure of courts and intersectional legal scholars to confront the difficulties inherent in proving discrimination using narrowly circumscribed pretext analysis. Applying “sex-plus” concepts does not address the underlying paradox inherent in the proof of these cases: the more complex the claimant’s identity, the wider must be cast the evidentiary net to find relevant comparative, statistical, and anecdotal evidence. Overcoming the courts’ reluctance to follow this direction requires the development and introduction of social science research that delineates the nuanced stereotypes faced by complex claimants.

In Part I of the article, Professor Kotkin lays out the relevant data. Among many other things, she notes that she

conducted a limited-but, I suggest, revealing-empirical analysis of multiple discrimination complaints. In the LexisNexis database, I searched for reported opinions on summary judgment motions in cases alleging either race and gender discrimination or age and gender discrimination in the federal courts for the Southern and Eastern Districts of New York, over a one-year period between June 2006 and June 2007. The search yielded twenty-six decisions in which multiple claims were substantively addressed. Of those, summary judgment was granted to the employer in twenty-two cases; in three others, only one claim survived. In only one case with multiple claims, or 3.8 percent of the sample, did the employee fully defeat the employer’s summary judgment motion. If partial success is included, the percentage of plaintiff success increases to 15.3 percent, but  these cases typically will go forward only with a single discrimination claim.

This finding can be compared with more ambitious empirical studies of summary judgment success rates in employment discrimination actions. Berger, Finkelstein, and Cheung found that plaintiffs prevailed in 29 percent of summary judgment motions made by defendants.  The Federal Judicial Center has recently undertaken a study of summary judgment in general, analyzing activity in 179,969 cases terminated in the seventy-eight federal district courts that had fully implemented its electronic case and docket management reporting system in Fiscal Year 2006.  In the employment discrimination category, it found that summary judgment motions were made in 30 out of every 100 cases, and that defendants prevailed in whole or in part in 73 percent of those cases.  In the district courts within the Second Circuit, the success rate was slightly higher at 76 percent.  In my sample of multiple claims, the comparable figure was 96 percent. (emphases added).

Professor Kotkin then argues that one major reason why multiple claim plaintiffs fare so poorly is that courts are reluctant to recognize intersectionality, the theory which suggests that — and seeks to examine how — various socially and culturally constructed categories of discrimination interact on multiple and often simultaneous levels. Instead,

In many cases, unless the issue of intersectionality is clearly presented, district court judges do not bother to look beyond the most simple narrative. They treat each claim as standing alone, and in the typical summary judgment opinion, they separately analyze the evidence proffered to support, for example, first the race, and then the gender claim, without even alluding to the possibility of a complex theory of discrimination.

This is problematic enough when an attorney is presenting the issue of intersectionality, but the problem is compounded by the fact that “[m]any, if not most, employees file charges with the EEOC without the assistance of counsel.”

In Part II of the article, Professor Kotkin gives an interesting and detailed history of the origin of the “sex plus” theory of discrimination in disparate impact cases and the expansion of the doctrine to disparate treatment, sexual harassment, and multiple statute cases.

In Part III of the article, Professor Kotkin notes that a number of legal scholars throughout the 1990s wrote intersectional scholarship “call[ing] for a more nuanced interpretation of Title VII that permits the aggregation of claims.” She then notes that “the courts have followed the direction suggested by these scholars in at least recognizing multiple claims, but plaintiffs still do not prevail.”

According to Professor Kotkin, the problem is two-fold. First, this body of work has not helped courts “in analyzing the quality of proof needed to prevail on such  a claim.” Second, “these articles focus primarily on the race/gender paradigm and do not provide a framework for the recognition of differently conjoined classes, such as age and disability.”

Finally, in Part IV of the article, Professor Kotkin notes the problems faced by even plaintiffs clearly presenting the issue of intersectionality. Once an employer comes forward with a legitimate nondiscriminatory reason for an employment action, the plaintiff has the burden of proving that the reason was a pretext for intentional discrimination, “a standard that is overwhelmingly difficult to meet.”

Professor Kotkin notes that

The most common method is to show that similarly situated employees of a different race or sex received more favorable treatment.  But who is a “comparator” when a complex claim is asserted? With a single-race claim, it is enough to show that, for example, a similarly situated white person was not laid off. In a race/sex claim, however, courts take the view that the comparator must fall within none of the protected categories that the plaintiff alleges.  For example, in a case involving an African American female, the only appropriate comparator is a white male. In the typical “reduction in force” [(RIF)] situation, as long as one woman or one minority group member survives the RIF, it will be difficult to rely on comparator evidence alone.

In this sense, “a complex claim makes it more-not less-difficult to show pretext” because, inter alia, a complex claim leads to a “small small statistical sample, and “a small statistical sample will often yield some diversity in those who also suffered the adverse employment action.”

Professor Kotkin notes that multiple claim plaintiffs can also try to present “me too” evidence, but she points out that

like the other modes of proof, it poses even greater challenges for the multiple-claim plaintiff. Difficult as it is to find employees willing to come forward with similar allegations of discrimination, the complex employee must theoretically find someone from the same subset: for example, not just a woman or an African American, but an African American woman. If “me too” evidence is limited to employees under the same supervisor, then, narrowly construed, it means that this mode of proof will be all but useless to those with multiple claims.”

This leaves Professor Kotkin with social framework evidence and brings me full circle to my previous post. Professor Kotkin offers a final possibility for multiple claim plaintiffs: “the possibility of introducing expert testimony regarding stereotypical thinking to show pretext.” According to Professor Kotkin,

expert evidence holds out great promise for the complex claimant. With regard to the traditional “sex-plus” cases-for example, those alleging discrimination against married women or women with children-plaintiffs have made significant progress. With foundation support, the Cognitive Bias Working Group of the Program on Worklife Law, a group of social psychologists, law professors, and practicing lawyers, spent two years studying and documenting what has come to be called “the maternal wall.”  In a recent article, Joan Williams provides the resources to help employment lawyers use social psychology in maternal discrimination cases. She reviews and digests over one-hundred works by social scientists.  In addition, she challenges the notion that, given this body of scholarship and evidence that automatic stereotypes can be consciously changed, “maternal wall” discrimination in the  workplace is a specie of “unconscious” or “subtle” bias.  She labels it instead “unexamined bias.”

Indeed, it appears that this project is having its desired effect. As notions of the “maternal wall” are introduced into popular discourse, plaintiffs are beginning to achieve significant victories in court, even without expert evidence.  If other types of complex claims are to be taken seriously and have any chance of success, similar efforts must be mounted to examine and document complex stereotypes and cognitive bias.

I highly recommend Professor Kotkin’s article to anyone interested in the subject and especially hope that lawyers trying and judges hearing multiple claim cases give it a read.

-Colin Miller

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