Alito’s Findings for Employers Cited as Evidence
Until a few days ago, the nearly decade-old case of Sheridan vs. E.I. DuPont de Nemours & Co. was barely known outside legal circles. Now it is evidence in the battle over whether U.S. Appeals Court Judge Samuel A. Alito Jr. will gain a seat on the Supreme Court.
It is one of several cases being cited by liberal groups as evidence that Alito holds little sympathy for workers who claim they were discriminated against by employers because of their race, sex or age.
Alito’s record on such cases is one reason critics argue that, rather than a responsible conservative judge who ought to be elevated to the nation’s highest court, he is out of the mainstream and should be rejected by the Senate.
Because Alito would replace Sandra Day O’Connor, who has been the key swing vote on the court for years, his nomination is drawing close scrutiny. Both his fans and his opponents say he will probably move the court rightward. The question is how much.
In 1996, an overwhelming majority of the U.S. 3rd Circuit Court of Appeals awarded a significant victory to Barbara Sheridan, a worker at the posh Hotel du Pont in Wilmington, Del., who said she had been sexually harassed by a supervisor, denied a promotion because she was a woman, and eventually fired for protesting the alleged discrimination.
A jury concluded that she was not entitled to the promotion but that her complaints had resulted in a hostile work environment, and awarded her approximately $30,000 in back pay. But the trial judge toppled the verdict, saying the evidence was inadequate to prove that gender was a critical factor in what had happened to Sheridan.
The appeals court heard the case twice, and both times ruled for Sheridan. In its final ruling, by a 10-1 vote, the 3rd Circuit ruled that a plaintiff did not have to show “direct” evidence of discrimination if a jury rejected an employer’s explanation of its actions as a “pretext.”
Alito was the lone dissenter. He contended that the majority had made it too difficult for an employer to win.
The majority -- eight of them Republican appointees -- cited a Supreme Court decision that emphasized that “there will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.” Consequently, cases of this type usually turn on circumstances and inferences, and a jury must be permitted to weigh the evidence and assess the company’s intent, the majority concluded.
A senior official of the Justice Department, speaking on condition of anonymity, countered that the clash between Alito and the court majority in Sheridan was over a technical legal point on the burden of proof and that neither this case nor any other should be cited as evidence that he was anti-plaintiff.
But the Alliance for Justice, a liberal advocacy group, said the ruling was one of several showing that Alito had “advanced a cramped reading of civil rights laws, notably Title VII of the Civil Rights Act of 1964, which bars various forms of discrimination in employment.”
Observers note that Alito’s opinions are often narrow, turning on points that might not address the larger question in a case. And several legal scholars acknowledged that Alito had favored plaintiffs in some discrimination cases. However, they said that in general his approach in race and gender discrimination cases was unsympathetic to plaintiffs.
“This is a very, very conservative judge who in his dissenting opinions is overwhelmingly likely to be more conservative than the majority,” said University of Chicago law professor Cass R. Sunstein, who is moderately liberal.
In 1993, an African American worker named Harold Glass lodged a case against Philadelphia Electric Co. During Glass’ 23 years at the company, he earned college degrees in industrial management and engineering. Glass filed a suit contending the utility had stymied his attempts to get promotions and retaliated against him because of his age, race and longtime efforts on behalf of minority employees. He had participated in a suit that removed barriers to employment opportunities for blacks at the company.
Philadelphia Electric said he was unqualified for the positions he sought, and cited a poor evaluation he had received eight years earlier. When Glass tried to counter with evidence that he had been subjected to racial harassment and a hostile work environment during that period, the trial judge did not allow it.
The 3rd Circuit reversed, 2 to 1, with two Republican appointees ruling that Glass should have been permitted to bring this evidence to the jury.
Alito dissented. He said that if Glass had been allowed to talk about what happened in the mid-1980s, it might have caused “substantial unfair prejudice to the company.”
Alito also dissented in a 1997 case. Beryl Bray, a black housekeeper at a Marriott hotel, applied for a promotion but a white woman got the job.
Bray discovered that Marriott had violated its own guidelines by not giving her proper notice or explanation for the rejection. In addition, several company employees gave conflicting accounts of how the hiring decision was made.
A federal trial judge threw the case out, concluding that Bray had not presented sufficient evidence. Alito agreed. He said that Marriott “may have treated Bray unfairly” by violating its internal procedures, but that these “minor inconsistencies” were not enough to warrant a trial.
The majority -- a Republican and a Democratic appointee -- disagreed, saying that Alito’s analysis of discrimination claims under Title VII of the 1964 Civil Rights Act were too constricted and that the statute “would be eviscerated” if his approach was followed by other courts.
Alito’s defenders point to a case in which he ruled in favor of an elevator operator whose job was eliminated.
Pauline Thomas worked in the Jersey City courthouse for six years before her job was lost to automation in 1995. The following year, Thomas, then 54, applied for federal disability benefits, asserting that she was afflicted by irregular heartbeats, high blood pressure, dizziness and nerve problems caused by a bad back.
The Social Security Administration rejected her claim, concluding that she was not disabled because she remained capable of performing her previous job. A federal trial judge agreed. Writing for the majority in a 7-3 decision for Thomas, Alito objected to the Social Security agency’s “literal reading” of the regulations. “If Thomas can show that the elevator operator positions really are obsolete, the fact that she still possesses the physical or mental capability to perform the duties of an elevator operator does not mean that she can engage in any substantial gainful activity that actually exists,” Alito wrote in 2002.
The next year, however, the Supreme Court reversed the decision 9 to 0. Justice Antonin Scalia said the agency’s rejection of Thomas’ claim was an “entirely reasonable” interpretation of federal law. The issue, Scalia said, was not whether the government action has “undesirable results” but rather “whether the decision is reasonable.”
Orin Kerr, a conservative law professor at George Washington University who supports Alito’s nomination, said the Thomas case showed that “Sam Alito cares more for the needy” than the justices now on the Supreme Court.
“Lots of people say Alito is conservative, and Alito’s conservative decisions tend to reaffirm that impression,” Kerr said. “At the same time, I think the Thomas case shows why it helps to approach reports of Judge Alito’s individual decisions with considerable skepticism. It’s very easy to misrepresent what a case was about by substituting a political question for the legal issue the court decided.”
Erwin Chemerinsky, a Duke University constitutional law professor who opposes the nomination, agreed that it would be unwise to assess the nominee on the basis of any one case.
“Alito has been a judge a long time, and it would be incorrect to say that he always rules against victims of discrimination,” Chemerinsky said. But he added: “Overall, his rulings are far more for defendants than for plaintiffs in discrimination cases. There are many more troubling decisions than encouraging ones in trying to predict where Alito would be as a Supreme Court justice in discrimination cases.”
