Jury Whacks Walmart with $5.2 Million Verdict In Favor of Disabled Worker

A federal jury in Wisconsin awarded a disabled Walmart Inc. employee $5.2 million in damages, finding that the retail chain had violated the Americans with Disabilities Act when it refused to accommodate the long-time worker.

The employee, who has a developmental disability and is deaf and visually impaired had worked as a cart pusher at the store for 16 years before a new manager started at the store. The new store manager suspended the employee in his first month and forced him to resubmit medical paperwork to keep his reasonable accommodations, according to the lawsuit. The store then fired the employee.

Last week a Wisconsin jury found in the employee’s favor after a 3½-day trial and awarded him $200,000 in compensatory damages and an additional $5 million in punitive damages. Sadly, this amount will likely be reduced by operation of the statutory damages caps found in the ADA. These caps have not been adjusted for inflation in almost 30 years.

Is Obesity a Protected Disability?

The Washington State Supreme Court Says It Is

Last month, the Washington State Supreme Court ruled that it is illegal under state law to refuse to hire an obese individual if they are otherwise qualified for a job when it defined obesity as a disability under state law.

The court ruled that the state's definition of disability in the Washington State Law Against Discrimination included individuals with obesity, offering a significantly broader scope than federal disability law. Weight is not listed as a protected category under Title VII of the federal Civil Rights Act and federal courts have not considered obesity a disability under the Americans with Disabilities Act (ADA) unless it is the result of an underlying physiological disorder or condition.

U.S. federal appeals courts have ruled that obesity in itself is not an impairment under the ADA. Four federal appeals courts, including most recently the 7th Circuit in June, have said that under the Act, there must be an underlying or perceived impairment — a "physiological disorder or condition" — causing a person's obesity for the individual to be considered disabled.

The Washington State Court decision confronted the established classification of obesity, instead preferencing the state's broader disability law. It ruled that under the state law, "the medical evidence [for obesity] shows that it is a 'physiological disorder, or condition' that affects many of the listed body systems" and that "obesity is not merely the status of being overweight, but instead is recognized by the medical community as a 'primary disease.'"

You can read the opinion here.

One Senator Blocks Trump-Nominated Reappointment of EEOC’s only LGBTQ Commissioner

Chai Feldblum, a member of the Equal Employment Opportunity Commission

GOP senator Sen. Mike Lee, R-Utah has used his power in the Senate to block the reappointment of the EEOC’s only LGBTQ commissioner, Chai Feldblum, because her existence is a "threat to marriage."

This is a real blow to American workers, especially those who are disabled. Feldblum, an Obama appointee who was re-nominated by President Trump, has spent most of her time on the Commission championing the rights of the disabled in the workplace.

In her capacity as an EEOC commissioner, she has little to nothing to do with any laws or policies having to do with marriage. So when it comes down to it Senator Lee doesn't like her because she is a lesbian.

Meanwhile, this will leave the EEOC without a quorum in 2019, making it more difficult for the agency to conduct business.

In my opinion, Sen. Lee is abusing his power as a member of the U.S. Senate. To block a Trump-appointee who has a long track record of being a strong advocate for workers in general and the disabled in particular based on nothing more than one’s personal religious preference is misguided and harmful to an extremely important federal agency.

I don't think anyone should be very happy about it.

Read the entire story here.

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

• McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.

• Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.

• The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.

• McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.

• An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.

• At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”

• McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.

• McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.

• McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

If you want to read more, start here.

Court Rules Company's Website Violates Americans with Disabilities Act

In what is the first lawsuit of this kind that I have heard of to go to trial, a Florida federal court has ruled in favor of a blind man who has filed nearly 70 lawsuits alleging that various companies’ websites violate the Americans with Disabilities Act.

On June 12, Judge Robert Scola, of the Southern District of Florida, decided that Winn-Dixie’s website is heavily integrated with the company’s physical store locations, making it subject to the ADA. His decision will require the company to update its site.

Plaintiff Juan Carlos Gil won't receive damages but the company will have to rebuild its website to comply with the court's order. The company has set aside $250,000 to update the site, though testimony during the trial indicated it will not cost nearly that much. During the trial experts estimated it would cost less than $37,000 for the company to update its site

The court ordered the company to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA drafted by accessibility experts. Experts consider this to be the de facto standard for website accessibility.

Gil can’t see the screen of his computer but uses JAWS or other screen reader software that tells him the details of the site he is visiting. When he hits the tab and shift buttons, it tells him what he needs to type. He uses the Winn-Dixie site to buy groceries and prescription drugs. He wants to use the websites to find coupons and refill prescriptions. 

One of the main questions the court had to decide was whether the website is a “place of public accommodation” under the ADA. The court ruled that because the site is “heavily integrated” with Winn-Dixie’s stores, it is.

The Court wrote:

“Although Winn-Dixie argues that Gil has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’”

This case indicates that companies which have a website that is a large portion of a customer's experience (think Amazon, Wal-Mart, etc.) will need to make sure their websites are accessible for those who are blind or risk a lawsuit similar to this one. 

Read more about this case. 

Jury awards $769,000 Against Washington University in Disability Discrimination Case

A St. Louis woman has won a $769,000 verdict against Washington University in a trial alleging the school refused to accommodate her disability and then fired her.

The plaintiff, age 55, worked as a researcher at the university's medical school from 1996 to 2012 and had herniated disks, according to her lawsuit. She claimed her back problems caused her extreme pain in certain positions "including but not limited to cell culture and bench work" and that the university and her supervisor discriminated against her by not accommodating her condition.

Her lawyer said the university in November 2012 fired her from her cancer research position, telling her the school had lost funding for her projects. Her lawsuit said her firing was in retaliation for her request that she not be required to sit and bend over for excessive periods of time.

After a five-day trial in St. Louis Circuit Court, the jury Friday awarded Lin $269,000 in actual damages and $500,000 in punitive damages.

It should be noted that St. Louis is seen by many as being one of the most plaintiff-friendly venues in the country so your mileage may vary. 

Read the story here.

Can You Trust Your Company's HR Department?

A fellow blogger has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."

Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.

2. You know that written report from number 1, above? KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost.

3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally.

4. Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent.

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.  

A Win for Pregnant Workers at the Supreme Court

Peggy Young, a UPS driver who was forced from her when she got pregnant because the company wouldn’t allow her to work light duty, was victorious late last month at the U.S. Supreme Court. You can read the entire opinion here.

"Conservative" Supreme Court Justices John Roberts and Samuel Alito joined with the "liberal" justices on the Court in what most observers are characterizing as a big win, not just for pregnant women, but also for all women in the workplace. That is no small feat from a court that has in recent years narrowed interpretations of anti-discrimination law and been reluctant to impose any new burdens on businesses. 

The case had brought together an unusual alliance of women’s rights activists and anti-abortion groups, who argued that women shouldn’t have to choose between her pregnancy and her job.

The 6-3 opinion, written by Justice Stephen Breyer, sends the Young case back to the Fourth Circuit of Appeals, which had previously ruled against Young, with a new set of rules that should make Young’s chances of prevailing “very strong.” The Fourth Circuit, Breyer wrote, should have asked, “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia dissented. Young argued that because UPS accommodated other kinds of workers, such as injured ones or drivers who had lost their Department of Transportation licenses, it was discriminatory not to extend the same to pregnant women who also temporarily needed to be accommodated. The court’s majority didn’t entirely accept that argument, but it did say that pregnant workers could bring claims under the long-settled "McDonnell Douglass process for adjudicating other discriminatory claims under Title VII of the Civil Rights Act.

Under the court’s reasoning, Young wouldn’t have to show UPS was intentionally discriminating against pregnant workers, but a court would have to “consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to work.”

UPS has reportedly already changed its policy to explicitly include accommodations for pregnant workers, but the rules laid out by the case will impact working women at companies around the country, since they guide lower courts in future litigation.  

EEOC Releases 2014 Statistics

The Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

"Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination," said EEOC Chair Jenny R. Yang. "The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity."

The updated data include the popular tables of Statutes by Issue and Bases by Issue. "Bases" refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast "issue" is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.

• Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)

• Race (including racial harassment): 31,073 (35 percent)

• Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)

• Disability: 25,369 (28.6 percent)

• Age: 20,588 (23.2 percent)

• National Origin: 9,579 (10.8 percent)

• Religion: 3,549 (4.0 percent)

• Color: 2,756 (3.1 percent)

• Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision

• Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges of Race Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

Federal Judge: Anti-Discrimination Laws Have Been "Gutted"

As we prepare to celebrate the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964, that law has been gutted. This seems to be the growing consensus among academics, employment attorneys and judges. Harvard Law School professor and former federal judge Nancy Gertner writes about the sad state of affairs in this article. Judge Gertner now teaches law at Harvard and was for many years one of the most distinguished federal trial judges in the nation. Gertner writes about a study that was commissioned to review the 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.

But don't go thinking that these results from Georgia are an aberration.  They aren't. As Judge Gertner points out, "[t]he Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases."

The simple truth of the matter is that federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments. Gertner writes:

Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.

This is rapidly leading to a situation in which employees who have suffered discrimination can't even obtain qualified legal counsel to represent them. Fewer and fewer good lawyers will represent plaintiffs in these cases because the odds are stacked against them regardless of the strength of the case.

Unfortunately, if these trends don't change, the protections against discrimination envisioned by those who authored the Civil Rights Act may vanish forever. As the study cited by Judge Gertner points out, even cases with incredibly strong facts are statistically likely to be thrown out by a judicial system that has become hostile to even the most valid of discrimination claims.  Take the example case cited by Gertner's article - a racial harassment case in which the plaintiffs alleged that their employer had created a racially hostile environment:

Mr. Whorton used the N-word at manager meetings and went out of his way to use that term despite plaintiffs’ objections. Defendants used the N-word “on virtually every occasion” they were present at the club, and it “was not uncommon” for that term to be directed towards plaintiffs. On one occasion, Mr. Whorton called a staff meeting to address the issue of his use of the N-word. During that meeting, he stated that he was too old to change the way he spoke, and he invited anyone who did not like it to quit. On another occasion, Mr. Whorton stated, “What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.” Plaintiffs allege four additional comments. First, Mr. Whorton once asked an unspecified person or persons whether “days like this [make] you wish you people had stayed in chains?” Another time, Mr. Whorton saw someone wearing a shirt with a monkey on it and asked, “Are the Obama shirts in?” Mrs. Whorton once said she realized she was using the classical form of the N-word when she should have been using the contemporary form. Lastly, Mr. Whorton complained to plaintiff that he could not trust African Americans, and said, “Dwayne . . . look at me! I know you don’t like this – n—–s don’t appreciate s–t.”Here, viewed in the light most favorable to the plaintiffs, the facts simply show that the Whortons are racist, bigoted, and/or offensive people. However, “Title VII is not a civility code, and not all profane or [racist] language or conduct will constitute discrimination in the terms and conditions of employment."

That's right, the court granted summary judgment against the plaintiffs in this case. The court held that this case was not even strong enough to warrant a jury trial.

Surprised by the result? Unfortunately, I am not. Any plaintiff-side employment lawyer can rattle off a long list of strong discrimination cases that the courts have poured them out on. It has become so bad that few new lawyers are willing to join the thinning ranks of plaintiff-side employment lawyers. Sadly, I can't blame them.

I learned of Judge Gertner's article while reading U.S. District Judge Richard Kopf's excellent Hercules and the Umpire blog article "When it comes to employment cases, judges are killing the Civil Rights Act of 1964." He has done a study of his own cases similar to the Georgia study (see here and here). Turns out his own dismissal rate of employment discrimination cases was just as bad as those courts studied in the Georgia study.  He writes: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

While I appreciate his candor, I do respectfully differ with Judge Kopf to the extent that he seems to imply that he feels his hands are tied with regard to this issue. The fact of the matter is that the letter of the law does not "favor the granting of summary judgment motions in a high percentage of [these] cases." Quite the opposite. The letter of the law states that summary judgment is a tool to be used sparingly and only to weed out the most meritless of cases. The default is always supposed to favor the resolution of factual disputes by a jury trial.

Unfortunately, many judges have, perhaps subconsciously, adopted a clear bias against victims of discrimination that has worked its way into the very fabric of how the judiciary approaches these cases. It has become the norm. It has become acceptable. But, it isn't in the letter of the law. It just isn't.

If there is a solution, it will have to start in the district courts. Summary judgment motions are primarily in the control of district court judges. Yes, courts of appeal weigh in but they generally support the district courts with regard to summary judgment rulings. Truly, the only way this situation can be remedied is if district court judges take a long hard look at their approach to discrimination cases and realize the degree to which bias has become a normal part of courts' analysis of summary judgment motions. The Supreme Court has never required that the idiotic McDonnell Douglas burden analysis be used in any case. In fact, a strong argument can be made that it violates F.R.C.P. 56 because of its rigidity. The only purpose McDonnell Douglas serves is as a way to make application of a bias appear to be application of a technicality. The lawyers and courts all know it isn't a legitimate test - that's why we don't ask juries to follow it in the few cases that make it to trial.

My modest proposal: dump the hyper-technical, bias-disguising tests. Get back to the basics. The letter of the law is actually quite simple - if there is a question of fact, the case must go to a jury. If there is any evidence that the decision at issue may have been motivated by illegal discriminatory bias then the case should not be summarily dismissed. It should be resolved by a jury trial. It really is just that simple.

As we approach the 50th anniversary of the passage of the Civil Rights Act of 1964, the question before us is whether we will we be celebrating a birthday or a funeral? The answer to that question is now in the hands of the district courts.