Thursday, November 03, 2005

Bray v Marriott

The WaPo talks about this employment discrimination case, in which an employee at a Marriott hotel "alleged that she was denied a promotion because she was black". The article claims that "Alito's dissent prompted a rebuke from his normally congenial colleagues. The law that bans employment discrimination, the other two judges wrote, 'would be eviscerated' if courts followed Alito's logic".

In another forum, someone citing this article went further, and wrote: "The other judges were so incensed that they addressed him directly saying that if his ideas prevailed, there would be discrimination allowed in all companies".

Here is my reply:
I don't know where you get the idea that they were "incensed". That word doesn't appear in the WaPo article; it does describe the majority opinion as having "rebuked" Alito, in a manner not to be expected from "normally congenial" judges, but I don't think their language in the case itself supports even that.

The case is here. For Marriott to prevail, it didn't have to prove that Ms Riehle (the person it hired) was better than Ms Bray (the plaintiff). Rather, in order to prevail, the burden was on Bray to prove not only that she was better than Riehle, but that Marriott could not possibly have believed Riehle was better, and that its claims to have so believed were lies. The judge in the lower court decided that given Marriott's evidence about Riehle's qualifications, it would be impossible for Bray to prove this, and dismissed the case. In the appellate court, Alito agreed with the lower court judge, while his two colleagues disagreed.

It's perfectly standard for a dissent to explain why it disagrees with the majority opinion, and it's equally standard for the majority opinion to address the dissent's reasons, and explain why those points didn't convince the majority to change their mind. There's nothing uncongenial about this, and no reason to see it as a rebuke. In this case, the majority said that if Alito's standard were consistently applied, then a defendant who sincerely believed that white workers were better than black ones would have a perfect defense, and would always prevail in such cases, and thus the antidiscrimination law would be "eviscerated". Therefore, the majority decided that the standard set by the law and by previous decisions should be loosened.

I don't see anything in Alito's opinion to justify the majority's conclusion, but leaving that aside I don't see how its words can be characterised as a "rebuke", let alone as a sign of being "incensed". The three judges simply disagreed about what standard to apply to such cases. Disagreement between judges happens all the time; that's why panels have odd numbers, so a majority decision can be reached.

Incidentally, I'm amused by all the reports calling Alito a "lone" dissenter on three-judge panels, or otherwise making a big deal about the fact that he was the only one with his opinion, and none of the other judges agreed with him. A dissenter on a 3-judge panel is by definition "lone"; if even one of his colleagues agrees with him, then they become the majority, and the remaining judge becomes the dissenter. And it's not as if Alito didn't have his share of decisions in which he was in the majority, against another "lone" dissenter.

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