As Judge Nancy Gertner Retires, We Lose One of Our Greatest Judges But Gain One of Her Greatest Opinions

Judge Nancy Gertner kicks ass. I remember writing a motion in limine regarding the admissibility of virtual reality evidence for the annual mock technology trial when I was a student at William and Mary. Judge Gertner served as the judge for this mock trial, and she really took the time to pour over my motion, delivering a thoughtful ruling on it. The experience was one of the main things that inspired me to become an Evidence professor. If you are looking to inspire someone to enter a career in the law, or just to inspire someone generally, I have no doubt that her new book, In Defense of Women: Memoirs of an Unrepentant Advocate, will do the trick. Just watch this clip of Judge Gertner talking about her life, and I’m sure you’ll be sold.

Recently, I learned that Judge Gertner is retiring and has been appointed as a Professor of Practice at Harvard Law School. Harvard’s gain. The bench’s loss. Judge Gertner leaves a legacy of compelling decisions, and, according to an article on her retirement, one of her swan song opinions might just be her masterpiece. According to,

to understand Nancy Gertner, better to consider the case of a hotel housekeeper named Carmen who said she was driven from her job by a boss who thought she was too old.

When the hotel owners sought to dismiss Carmen’s age discrimination suit on the grounds it was just one manager making “stray’’ remarks, Gertner could have upheld or denied the motion in a single page. But that’s not her way.

Rather, she issued an intricately detailed 33-page decision that came down on the hotel like a collapsing roof, putting management on notice that there’s no excuse for calling Carmen or anyone else “an old shoe’’ or an “old hankie.’’ The defendant’s lawyer might want to think about settling this case, say, yesterday.

So, what was the case, and what did Judge Gertner hold?

The case was Diaz v. Jitan Hotel Management, Inc., 2011 WL 181777 (D. Mass. 2011). The facts were as stated above.

Specifically,…[Carmen Diaz] allege[d] that after twenty-two years of excellent service and two “Department Head of the Year” awards, she was suddenly denied review and the corresponding annual raises. Her direct manager, Mitesh Patel (“Mitesh”) repeatedly asked her when she was going to retire, told her that she was getting old, and indeed called her an “old pumpkin,” an “old shoe,” and an “old hankie.” When she hired a 52–year old laundry attendant, he told her, “You’re going to convert this hotel into a nursing home.” The harassment, she allege[d], permeated the environment. Indeed, another manager told her that management thought she was too old for the job and that “old people should remain home.”

Diaz thereafter filed a complaint with the EEOC and the Massachusetts Commission Against Discrimination. Jiten then moved for summary judgment, alleging (1) “that whatever claims Diaz ha[d] [we]re directed solely against Mitesh, her direct manager;” and (2) that “Mitesh’s discriminatory statements [were] merely ‘stray remarks,’ certainly not indicative of his discriminatory animus or the employment environment as a whole.”

Judge Gertner was having none of this, responding

I fundamentally disagree. As I describe below, discrimination is a complex phenomenon, in general, and in particular, in the case at bar. It is about concepts like bias and motivation, precisely the kinds of concepts least suited for resolution by a judge. And the evidence that bears on bias and motivation is rarely direct; few decisionmakers will say, for example: I am firing you because you are old (or a woman, or a minority). Rather, discrimination must be inferred not only from the statements of the relevant actors, but also from the context in which they were made, including the relationships between the various actors, the speaker and those around him.

In order to argue for summary judgment in this case, the defendant reduces the work environment to the words of a single man. And it would trivialize that one man’s statements about older workers: They did not reflect his real animus to older workers, it argues. They did not create an atmosphere in which such comments were condoned. They did not set an example for others concerning how older workers ought be treated. Finally, they claim that after this one individual was transferred, things suddenly improved; virtually overnight, the workplace was purged of bias.

In effect, what the defendant would have this Court do is to—as one scholar describes it—”slice and dice” the complex phenomenon of discrimination into pieces, and evaluate each piece out of the context of the whole, the real, lived employment environment. See generally Michael Zimmer, Slicing & Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 577 (2001); see also Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705, 709 (2007). The approach is not unusual; it is easier to point the finger at the “rogue” actor than to the unconscious and not so unconscious workplace bias that his actions may reflect and encourage.

As support for this last claim, Judge Gertner cited Sandra F. Sperino, A Modern Theory of Direct Corporate Liability for Title VII, 61 Ala. L. Rev. 773, 787-88 (2010), for the proposition that

One of the current problems in employment discrimination law is that courts view discrimination largely as a ‘problem of errant or rogue individual discriminators acting contrary to organizational policy and interest.’…In some cases, the search for the rogue actor is appropriate; however, in others, the search for the rogue actor asks the wrong question about culpability. It ignores the fact that multi-tiered or group decisionmaking processes may make it difficult or impossible to locate intent within a particular person….[It] disregards the ways that both formal and informal processes and policies within an organization shape the intentions and actions of its individual members, and the ways that the actions and intentions of the individual members shape the organization.

Judge Gertner then went on to hold that

Nowhere is this reductionist approach more clear than the defendant’s characterization of Mitesh’s tasteless comments as “stray remarks,” comments that somehow do not matter in the calculus of discrimination. As I describe below, the “Stray Remarks Doctrine”derived from Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S.Ct. 1775, 104 L.E.2d 268 (1989) (O’Connor, J., concurring), a gender discrimination case, under a mixed-motive theory, which was very different from the case at bar. And, in my judgment, the Doctrine has been distorted beyond recognition in the subsequent case law.

First, Diaz’s claims do not reduce themselves to the statements of Mitesh. She describes comments made with others present, comments echoed by at least one other manager, creating, in effect, an atmosphere of impunity. And Mitesh’s evaluations of her, arguably skewed by his bias, were credited by the employer even after he was transferred. Mitesh’s departure does not trigger the end of the discrimination, at least on this record.

Second, Mitesh’s comments should not be trivialized by characterizing them as merely “stray” remarks. In the past, judges understood the salience of biased comments, particularly when they were racist. The Fourth Circuit in 1988, for example, considered whether offensive statements using the word “nigger” should have been excluded at trial:

The user of such terms intends only one thing: to degrade those whom he describes in the most offensive manner. General use of these words, though obviously not conclusive evidence that a particular decision was made with racial animus, is clearly relevant to determining whether it was. It would be ironic indeed to conclude that use of the language of prejudice is irrelevant in a civil rights suit. Racial slurs represent the conscious evocation of those stereotypical assumptions that once laid claim to the sanction of our laws. Such language is symbolic of the very attitudes that the civil rights statutes are intended to eradicate. Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130 (4th Cir. 1988).

Consider Mullen in the instant setting: If a manager makes an ageist remark, it could well be a window on his soul, a reflection of his animus, or arguably, just a slip of the tongue somehow unrelated to his “true” feelings. If other managers were nearby, they could well have dismissed the overheard comment as an aberration, or it could have created a new norm of conduct for the company, an atmosphere of impunity. The point is that the inference to be given the remark should not be made by judges, particularly judges who have not heard the entire story.

That’s a pretty great opinion, huh? But wait, there’s more. This was merely the introduction to the opinion. Judge Gertner later really dug into the facts of the case, discrimination law, and how and why courts have distorted the holding of Price Waterhouse v. Hopkins beyond recognition. I won’t detail all of that analysis here. Instead, I will simply point readers to my recent post on Kerri L. Stone‘s terrific article, Clarifying Stereotype, 59 U.Kan. L. Rev. 591 (2011), which reaches many of the same conclusions as Judge Gertner’s opinion.

This isn’t surprising to me because Judge Gertner’s opinions have always read like really good law review articles. I’m sure she will fit in quite well as a Professor of Practice at Harvard. And I’m just as sure that the bench will be losing one of its surest voices.

-Colin Miller

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