Torgerson's Twilight

"There is no 'discrimination case exception' to the application of summary judgment." Torgerson v. City of Rochester, 643 F. 3d 1031, 1043 (8th Cir. 2011) (en banc).

For many years, 8th Circuit precedent held that courts should be reticent to grant summary judgment against plaintiffs in discrimination cases, because so much of the inquiry depends on inference. See, e.g., Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999) ("Summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim...."); Peterson v. Scott County, 406 F.3d 515, 520 (8th Cir. 2005) ("Summary judgment should seldom be granted in employment discrimination cases because intent is often the central issue and claims are often based on inference."). In Torgerson, the Court en banc rejected that rule and instead declared -- correctly, in my view -- that there is no special standard of summary judgment applicable to discrimination cases.

Earlier this week, the 8th Circuit en banc issued an opinion in Johnson v. Securitas Security Services USA, Inc. (Bye for the majority; Smith, with Melloy and Kelly, dissenting). The case is a seemingly run-of-the-mill age discrimination case. Indeed, for anyone crying foul over Halbig going en banc in D.C., this case provides an excellent illustration of en banc review occurring "whenever judges feel like it." The majority in Johnson does not assert the existence of any circuit split, or the need to overturn prior panel precedent, or the need to announce a significant change or clarification of discrimination law. This was (in the majority's mind, at least) simple error correction, nothing more.

Still, I think Johnson encapsulates a lot of what is wrong with how the courts (or at least the 8th Circuit, with which I am most familiar) approach discrimination claims. In particular, to me it emphasizes that the Eighth Circuit's employment discrimination precedents have already fallen out of line with Torgerson's mandate. It seems clear that there remains a discrimination exception to normal summary judgment rules. The only difference is that, instead of applying a special standard favoring plaintiffs, now the court has constructed discrimination law to improperly advantage employers.

The universal standard for summary judgment, applicable to employment discrimination claims and civil claims generally, is well-established. The court asks if the evidence, viewed in the light most favorable to the non-moving party and granting all reasonable inferences in favor to the non-moving party, creates a "genuine issue of material fact" such that a trial is necessary. Basically, the question is whether, if all reasonable factual disputes (and inferences derived thereto) are resolved in favor of the non-moving party, could that party win? If the answer is "yes", then summary judgment is inappropriate -- a jury should be the one to decide. In other words, at summary judgment the court does not ask how it, in its own independent judgment, would rule. It only is determining whether a reasonable jury could decide in favor of the non-moving party. In discrimination cases, this inquiry often comes down to how the courts appraise what sorts of evidence could allow a jury to reasonably infer that unlawful discrimination occurred.

This standard is well-known and well-trodden territory. It is also, I suggest, entirely incompatible with how the Eighth Circuit handles discrimination cases.

Take the treatment of "comparator analysis." Comparator analysis is simply the attempt by a plaintiff to present an inference of discrimination by comparing how he or she was treated to a similar employee who younger (or white, or male, or whatever). The Johnson court, citing well-worn Eighth Circuit case law, describes the standard for comparator analysis thusly:

[T]he test for whether someone is sufficiently similarly situated, as to be of use for comparison, is rigorous. See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012), cert. denied, 133 S. Ct. 1252 (2013). “[Johnson] must show that [he] and the employees outside of [his] protected group were ‘similarly situated in all relevant respects.’” Id. (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005)). “[I]ndividuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000))

Every time I read this standard, I'm shocked anew. The same supervisor, the same standards, the same conduct, under the same circumstances -- but different outcomes. If one can establish that, the casual observer would probably find that to be remarkably powerful evidence of discrimination. Or, in the Eighth Circuit, one has just enough to squeak past summary judgment.

In JBS USA, LLC v. Ridout, 716 F.3d 1079 (8th Cir. 2013), an Eighth Circuit panel tried to restore at least a semblance of sanity to comparator review. Quoting the Seventh Circuit, it observed that the "similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone." Taken literally, the orthodox comparator standard would exclude evidence where the other employee had engaged in objectively worse behavior (in Ridout, the comparison was between yelling on a loud factory floor versus hanging a mock KKK hood on the locker of a black employee). But Ridout also tried to drill down to the right way of viewing comparator evidence:

[T]he ideal comparator will match the characteristics of the plaintiff employee in as many respects as possible. While no employee is a precise clone of another, the probative value of comparator evidence will be greatest when the circumstances faced by the putative comparators are most similar to the plaintiff's. Where evidence demonstrates that a comparator engaged in acts of "comparable seriousness" but was disciplined differently, a factfinder may decide whether the differential treatment is attributable to discrimination or some other cause. (citations omitted)

What Ridout was trying to get at, I think, was the unremarkable proposition that the probativeness of a prospective comparator is a sliding scale. The more similar the comparator is to the plaintiff, the more persuasive the evidence it is. A perfect comparator would be remarkably persuasive. As the circumstances diverge, it becomes less persuasive. A decent but non-ideal comparator -- say, with the same supervisor and standards, with similar but not identical conduct in different circumstances -- well, one could argue either way. The company would argue that the conduct was materially different and the distinguishing circumstances explain the differential outcomes. The employee would contend that they are similar enough such that a jury can infer that discrimination (rather than the distinguishing characteristics) really motivated the hostile treatment. That sort of debate is precisely what we have juries for.

Of course, at some point if the situations are distinct enough it isn't really evidence at all. But the rule we have is Wonderland -- smoking gun evidence is the minimum threshold, decent-but-not-perfect evidence would be summarily rejected by any rational jury. This is nothing but a special discrimination exception to general summary judgment standards.

A similar double-standard is evident in how the court treats its obligation to view "the record as a whole." Johnson raised a variety of different arguments for why discrimination might be inferrable from the evidence:

For the reasons we have already discussed, the separate aspects of the record Johnson focuses on in his specific arguments do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination. Johnson’s argument regarding the record as a whole is merely an amalgamation of the arguments we have already found unavailing.

As the dissent observes, the majority's analysis here "compartmentalizes" these arguments, finds them individually unpersuasive, and then "summarily dismisses Johnson's contention that the record as a whole contains questions of material fact." Again, this seems completely inconsistent with how summary judgment should be applied in civil cases. It is obvious that pieces of evidence, individually insufficient to create a genuine issue of material fact, can do so in tandem (or in "amalgamation") with one another. It is precisely this mistake that caused the court, in Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir.1997), to caution that alleged instances of discrimination (there in the harassment context) should not be "carv[ed] into a series of discrete incidents."

Indeed, if we examine other cases predicated on circumstantial evidence (which is what an indirect discrimination case really is), this becomes even more obvious. In a suit for wrongful death, simply noting that the defendant had exchanged harsh words with the victim a week before she was stabbed is hardly enough to create a genuine dispute of material fact whether he caused her death. Evidence that the defendant was skilled with knives similarly would be insufficient on its own, as would evidence that he was in the neighborhood at the time of death. But amalgamated together, these individually-insufficient evidentiary arguments very well could send a case to a jury. In no other context would a court reject that sort of argument simply by referencing the individual insufficiency of its constituent parts.

It is possible that the real moral of this story is that, as a Seventh Circuit panel recently suggested, it is time to abandon to the McDonnell Douglas test altogether. If a plaintiff adduces evidence which could give rise to an inference of discrimination, and the defendant offers an alternative explanation that provides a legitimate defense for its action ... we have a dispute of fact. There's no reason to have a special set of hoops for plaintiffs to jump through before a jury gets to do its job. But whether such a drastic reform is necessary or not, even within the confines of McDonnell Douglas it is hard to assert with a straight face that courts are applying the same summary judgment standard as they do for other forms of civil litigation. There is once more an "employment discrimination" exception to summary judgment doctrine. The only thing different is the beneficiary.

Rev. Shipman's Experience

Tablet Magazine has a very revealing interview with former Yale Chaplain Rev. Bruce Shipman, who lost his position after attributing anti-Semitic violence in Europe to "Israel's policies in the West Bank and Gaza." He suggested that "the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question." In other words, a plea for respectability politics.

The interview was quite informative, in its way. For starters, I found out that Rev. Shipman attended Carleton. That, needless to say, is disconcerting -- I hope he didn't develop his outlook on Jews at Carleton. And I also hope he didn't learn how to answer an interview at Carleton. Because boy, is this one ever a disaster for him.

If one was to characterize a theme to Rev. Shipman's responses, it would have to be "self-pity". He really, honestly, absolutely truly sees himself as the victim here. All the controversy is just hot-headed Jews who refused to listen to reason. We get a long series of remarks on the supposedly shady process through which he was asked to resign; and a clear sense of bitterness that the Episcopalian community didn't stand by him. We also get what he basically admits is a groundless and conspiratorial claim that one of the op-eds written against him (by a Yale student) was actually written by ... someone else. Not gonna say who. Could be anyone. But clearly coordinated. Obviously not a genuine response of anguish from a community member feeling a legitimate grievance. Must be a plot.

While he is quite verbose on the subject of the nefarious plot that brought ruin upon him, he's much more ... taciturn ... when it comes to exploring why his views were so offensive. Consider this exchange:

I guess I’m curious …

I do understand.

Because you weren’t responding to some article about civilian deaths in Gaza.

That’s correct.

You were responding to an article about the murdering of innocent Jews in Europe.

That’s correct.

And so it struck me as curious as why would someone respond to the murder of innocent Jews in Europe by talking about Gaza, except to say that in some way …

I had Gaza on my mind.

… Israel brings this upon …

Gaza was on my mind when I wrote it. But clearly it was not dealing with the larger subjects. And I can understand, and your point is well taken. I do understand.

Is it uncharitable of me to think that maybe he doesn't "understand"?

Or compare the interviewer's lengthy explanation of why -- in the opinion of a far-left Jewish friend -- left-wing Protestants tend to be the most likely candidates for anti-Semitem to Rev. Shipman's response:

I’ll say something very frank, because I appreciate your frankness. I once asked a friend of mine who is a Jew very much on the Left, substantially to the Left of me. You know, someone who favors boycott and divestment [from Israel], someone who favors a one-state solution without question, somebody who is, you know, deeply enmeshed in proudly anti-Israel politics.

Is he for one-state solution?

I don’t know, I’m not entirely clear, but he could be. He runs with plenty of people who are. And he’s Jewish. And I said to him, “You spend so much time among anti-Zionists. How can you tell which ones, which minority, are anti-Semites?” And he said, “Well, that’s easy.” He said, “It’s the liberal Protestants. The Jews aren’t anti-Semitic, even if they’re called self-loathing. And the Muslims aren’t anti-Semitic, because they get us.” He said they understand everything about us, as we understand everything about them. He said it’s the well-meaning leftie Protestants. They profess a deep spiritual kinship with Jews, they’ve often lived in the Middle East, they’ve led tours there.

He’s talking about me! [laughs]

He said, “But they fundamentally see Jews as, their image of the contemporary Jew is of a rich, crass, Zionist who distorts American politics and is bad for the idealized Jew whom they love. Whom they may or may not know any of anymore.”

And, I knew exactly what he was talking about. And I’m not saying that’s you. At all. I don’t know you. But I know people like that … And what I sometimes think is, about the philo-Semitic liberal Protestant experience, is that they don’t understand the why the contemporary liberal Jew might be a Zionist. That in their mind the last good Zionist went out sometime around the late 1960s, was a socialist on a kibbutz somewhere, was totally secular, and that they don’t actually get the lived experience of being, say, a religious Jew in Brussels today.

I think there’s a truth that one can deeply love Jews and have loved Jews, but feel that there are no good Jews left. Except the ones that are entirely secular and anti-Zionist. That there are no good Jews left like there once were.

That’s not my experience.

That's not your experience? Remind me why "your experience" is even remotely relevant? Elsewhere he remarks that "Israel just isn’t good for the Jews, I really feel that. Israel at the present time is not good for the Jews." The underlying assumption, of course, is that what Rev. Shipman "really feel[s]" is remotely useful for providing guidance vis-a-vis what's actually good for the Jews. What has Rev. Shipman done to justify substituting his perspective for those of actual Jews? Blithe dismissal in the place of introspection is the story of this article.

Finally, let's conclude with how the interview concludes -- with what Rev. Shipman hopes "comes out of" this experience:

How are you feeling now? Are you angry?

No. I’m really not. You know, I’m adjusting to a different life. I’ve reconnected with some old friends and made some new ones. I object to being labeled an anti-Semite, which I was in the local paper [the New London Day, in a letter to the editor]. But I really do want to see something come out of this, in the form of an endowment at Yale for the study of the Nakba and the Palestinian diaspora. Where refugees went, their stories, their present conditions.

I bet if you raised $5 million they would take it. How rich are you?

Well, it’s not just me, but I’m hoping to interest a sheik in the Gulf.

Have you been in touch with sheiks in the Gulf?

Well, I expect to be; I hope to be.

How does one do that?

This is new for me. I have a good friend who has done well, an English friend from my time in England, who has done well in life, and who has been given a seat in the House of Lords, and I think that he would have access to some of the sheiks in the Gulf and could make the case. This would be good public relations. Bring something good out of my experience, and also help to bring better understanding of the Palestinian situation. Some kind of acknowledgment. I think it’s worth pursuing. I think it’s doable.

I have no issue with increased historical awareness of the plight of Palestinian refugees following Israel's War of Independence taught in tandem with similar Jewish dispossession that occurred at the same time throughout the Middle East. In fact, I think they should be taught together (I hesitate to endorse having the course funded by Gulf Sheiks). But why that should be what we hope to get out of this controversy baffles me. Shouldn't we hope that we commit to, I don't know, deeper understanding of Jewish experience, or greater willingness to recognize the validity of Jewish perspectives, or even something as simple as renewed commitment to combating anti-Semitic violence in all of its forms? But no -- the most important thing we should get out of a statement attributing the death of Jews in Europe to the actions of Jews in Israel is that Palestinian history be heard. Shades of Fatima Hajaig, anyone?

Necrophiliacs Anonymous

California recently passed new rules governing campus sexual assault, predicated on the idea of "affirmative consent":

"Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Jon Chait, David Bernstein, Batya Ungar-Sargon, Cathy Young, and Michelle Goldberg (among others) all cry foul. There are several themes to their complaints, which I feel are worth addressing.

First, let me take a moment to articulate what I take this bill to mean. Put simply, I think "affirmative consent" means nothing more than that the person involved actually consents. "Consent" does not spring into being other than by a conscious decision of the participants that they are consenting. We're looking to the state of mind of the sexual participant -- do they conceptualize themselves as consenting? Other models of consent don't really ask this question, because they're looking to the state of mind of the accused. Did something happen that might have put him on reasonable notice that his partner was not consenting? "Silence" supposedly won't cut it because, well, why should he infer anything at all from silence? Silence isn't evidence, it's a lack of evidence. Note here the default assumption that a women is consenting to sex that occurs, which can only be rebutted by some overt act withdrawing it--traditionally restricted to physical resistance although now more expansive ("no means no")--giving the man knowledge that his partner does not consent and the sexual act is now illicit. Silence is presumed to be consent because no affirmative step was taken to withdraw consent; the burden is on the woman to withdraw consent rather than on the man to procure it.

This has several important implications. First, either way we're going to require an "affirmative" act of something -- consent or nonconsent. Either the man is responsible for taking steps to ensure consent exists or the woman is responsible for taking steps to confirm that it doesn't. It is unclear why, between these two competing candidates for positive obligations, the former is so much worse, so much more onerous, than the latter.

Second, recognizing that "affirmative consent" means the existence of actual (not just presumed) consent counters the claim that there is a disjuncture between the "letter of the law" and what will actually be prosecuted under it. The claim here is that while a great many sex acts will "technically" be rape under the statute, we need not worry because the partner allegedly victimized won't press charges (presumably since she actually was fine with the sex). The "problem", we're told, is that this relies on underenforcement of a badly written law -- the sex in question is rape under the law, we're just depending on the beneficence of prosecutors to overlook it. But this seems to rest on a misunderstanding: I don't think under the California bill a case could successfully be brought if the alleged victim testified that she actually did consent. Nonconsent is still an element of the offense, and while it cannot be rejected simply from silence or a prior existing relationship, it obviously can be negated by an outright declaration by the supposed victim that actually, yes, she did desire the sexual activity.

This also relates to the supposed "ambiguity" latent in the definition of consent. How will we know if consent does not exist absent an overt declaration to that effect? I could retort "how do we know if consent exists absent such a declaration" -- a response that demonstrates that this debate is actually about default rules. Do we presume a woman consents unless she manages to convince us otherwise? But the bigger point is that both the call and the response are absurd, resting on a naive belief that (on the one hand) verbal declarations are infallible and (on the other) there is no other means but through verbal statements to reliably communicate information. Does any one believe this? Of course not. If a woman says "yes" with a knife to her throat, we all are quite capable of using context to disregard the statement. And if a woman violently thrashes about or tries to flee the room, I can't imagine we'd likewise have any difficulty inferring nonconsent regardless of whether she actually said "no" or not. If we can do it for nonconsent, why not consent?

Indeed, to a large extent I find the focus on what we supposedly can't infer from "silence" to be nothing short of bizarre. I'm imagining a completely inert woman, who says nothing, does nothing, takes no voluntary action or otherwise exhibits no signals or reaction whatsoever to an ongoing sex act. Having sex with such a person strikes me less as "the grey area between consent and nonconsent" and more like necrophilia. Far from wondering what it means if your partner is completely silent and completely nonresponsive to one's sexual advances; that to me seems to raise very little doubts regarding whether actual consent has been obtained. Does anyone even desire sex like this while still purporting to want a consenting partner? I'm no Casanova, but I'm pretty sure that if your sexual escapades are occurring in complete and utter silence that should be a red flag no matter what your beliefs about sexual assault might be.

This is not to say there are no cases where there might be ambiguity. But ambiguity is inherent in any legal standard. Consider the facts of State v. Rusk (facts recounted at the link). That case, I think, is very easy under an "affirmative consent" rule but obviously quite difficult under the default rule where one needs to affirmatively demonstrate nonconsent. Another case I recall (unfortunately I can't find it) involved a woman who was jogging in an isolated wooded area. A man who outweighed her by over one hundred pounds literally lifted her up and dragged her off the path, and proceeded to have sex with her. She testified that she didn't resist (futile because of the size differential) or call out (futile because of how far away she was from civilization), figuring that either action might provoke the man to greater violence. Does her "silence" mean consent? What about "I don't know if we should -- my husband is in the next room"? If the man keeps going, has she consented or not? Two can play at the ambiguity game.

Finally, I want to briefly address a complaint I've seen from several sources -- that the California definition of consent is flawed because it would label huge swaths of the American population as rapists. Bernstein's title gets the point across in blunt fashion: "YOU are a rapist; yes YOU!"; and a significant portion of Chait's piece is focused on this concern as well. As a descriptive matter, I have no idea whether this is true -- have most people had sexual encounters where there partner actually did not consent to the act (even if, in their own head, we might have thought they did)? But I want to flag it because I think it presents a very odd -- yet very widely held -- normative position: that by definition rape must be something that is rare (or at least, confined to a narrow class of perpetrators). A definition of rape that encompasses lots of people as perpetrators is, by virtue of that fact, a flawed definition. I raised this possibility in Sticky Slopes -- that we inversely relate the severity of a norm (how bad is rape) with its scope (how many behaviors do we categorize as rape). There is no intrinsic reason, of course, why any such relation should exist. Rape can be very evil and heinous and widely implicate large portions of the American population. There is no rule that says evil must be confined to a narrow band of recognized evildoers.

I should say that Chait, at least, seems to also be making a prescriptive point that where behavior is widespread then sweeping moral condemnation of it is unlikely to be successful. He has some empirical backing for this position (Dan Kahan's work on "gentle nudges" versus "hard shoves"), and that is worth considering to the extent our primary concern is changing behavior. But I want to reemphasize that, while this may accurately describe our moral outlooks, it does not dissipate the strangeness of that conclusion. There is something odd -- almost cheating -- in arguing against a moral claim solely because it would condemn common behavior. It's a naturalistic fallacy on steroids.

"!!!!" ... And Let Me Also Say: "!!!!"

Holy schmoly, Todd Kincannon (former executive director of the South Carolina GOP) wants to execute anyone who's ever been in contact with Ebola. This is part of a stream of horror that begins with "People with Ebola in the US need to be humanely put down immediately," continues through "The people of Africa are to blame for why it's so shitty. They could stop eating each other and learn calculus at any time," and concludes by stating "We should put Wendy Davis' vagina in charge of the Ebola outbreak. It will kill all of them without mercy and go to Nordstrom's afterwards."

And you know it's bad when "We need to be napalming villages from the air right now" doesn't even make my top three. My goodness.