Wednesday, June 22, 2011

The Disconnected Judges

What do federal judges sitting by lifetime appointment know about the hard realities of racism and retaliation in the trenches of the American workplace?  I deeply respect the judiciary.  Still, I note a problem:  while we have jurors of our peers in matters of fact, we have anything but our peers deciding matters of law.

The problem in employment law is compounded.  Judges generally are like "employers" in running their courtrooms.  They are the final authority within their own domains.  They probably have a difficult time seeing the world through the eyes of a wronged employee.

I see this problem surface often when the drama of a live case is removed from the workplace and placed before a judge at an early motion phase called "summary judgment."  That process is decided on the cold, dry, and lifeless paper declarations submitted for and against the motion.  Or, it may be that an appellate court reviews the drama of courtroom trial by the two dimensions of the written "record on appeal."

The truth is that we all distill the evidence through our experience.  Congress recognizes this fact when it looks to achieve diversity in the appointment of judges.  Yet, judges were once lawyers, and as lawyers, their worlds are so much different than many office and factory workers with limited education.  The fact is that most federal judges remain older white upper class males deciding the fates of ordinary folks.  These judges, like all of us, interpret the evidence not just in light of the law, but in light of their world views.

The 7th Circuit Court of Appeals recently decided that an employer acted according to law in investigating ongoing alleged abuses by co-employees against one African American woman named "Vance."  There was a long list of abuses, allegedly motivated by race, each of which the employer "investigated."  The employer concluded that not a single alleged incident had merit.  Little or no disciplinary action was taken by the employer.  The Court dismissed Vance's case.

In the Vance case, The Seventh Circuit seemed unwilling or incapable of entertaining the possibility that the employer's so called "investigation" was superficial and defensive, intended to shield it from liability rather than getting to the truth, and addressing the alleged discrimination.  In effect, the court likely filtered the evidence through a world view that the employee was consistently lying, and the employer was consistently acting in good faith. That is a tall order for a Court acting as arbiters of the law, but not the facts.  The Court is allowed only to consider "undisputed" or "admitted" facts in dismissing a case before trial.  When a Court simply cannot see another possibility, it is likely a Court with an unexamined, unconscious world view that has filtered out the other possibilities.

The lesson is that employee rights attorneys must be aggressive in gathering as much evidence as possible in the early phases of a case to defeat the summary judgment motion.  The challenge is truly daunting.

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