Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.
This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even doctrines that facially appear to perform other functions often serve as disbelief doctrines. Courts often rely on the honest belief doctrine and the idea that courts do not sit as super-personnel departments to impermissibly favor an employer's evidence over that presented by the worker. And even outside of the more formalized doctrines, courts often apply evidentiary preferences that disfavor workers by excluding relevant evidence. Although many of these doctrines have received scholarly criticism and attention, this article examines how the various disbelief doctrines work together to tilt employment discrimination jurisprudence to favor employers over workers. When plaintiffs try to survive summary judgment or maintain a jury verdict in their favor, the disbelief doctrines often improperly instruct courts not to believe them. While the disbelief doctrines are problematic because they rely on faulty factual premises, they are also worrisome because of three underlying structural problems.
First, the disbelief doctrines upend the normal rules of litigation. In individual cases where trial courts apply the disbelief doctrines, judges are often violating the Federal Rules of Civil Procedure related to summary judgment or post-trial motions. And appellate courts often disregard rules designed to respect jury verdicts.
Second, it is unclear whether judges even possess the power to create the doctrines in the first place. Each of the doctrines discussed is a courtcreated doctrine not contained within the text of the federal discrimination statutes. Many of the doctrines have no statutory basis and even contradict Supreme Court precedent. It is questionable whether the courts have valid power to create facially substantive rules outside of a statutory regime that act as disbelief doctrines, thus contradicting the Federal Rules of Civil Procedure.
Finally, the disbelief doctrines are part of a much larger development in federal discrimination jurisprudence. When a court examines a federal discrimination case at a procedural juncture such as summary judgment, the judge follows a different set of analytical constructs than those used if the same case was given to a jury. For example, under the Federal Rules of Civil Procedure, a judge may allow a case to proceed past summary judgment or judgment as a matter of law if a reasonable jury could find for the nonmoving party. However, judges and juries approach discrimination cases very differently, making it difficult to understand how a judge can reasonably approximate a jury's analysis. Not only are judges demographically different than juries, but, as discussed later in detail, judges use different analytical frameworks than juries to consider cases. As a result, judges and juries may not arrive at the same answers because they are asking different questions.
39 Berkeley J. Emp. & Lab. L. 231 (2018)