If I had direct evidence that I'd been denied a promotion because my boss preferred a guy because he was a guy, I might be content to have Judge Samuel Alito review my case on appeal after I'd brought suit. He'd read the record closely. He might even dust off a worthwhile claim that the trial judge had impatiently tossed out below.
The problem is, I probably wouldn't have any direct evidence. In an employment suit, a smoking gun is rare enough to be a collector's item. Discrimination is often subtle or goes unspoken, and companies have gotten better at training supervisors not to say obviously illegal things ("I'd hire her if her name was Emil"). And without that sort of hard-to-come-by but easy-to-grasp evidence, I'd want to keep Judge Alito far away.
It's not that Alito is a judge who always thinks the employer wins. I read 14 opinions of his in suits alleging discrimination at work because of race, gender, age, or religion. In nine majority opinions and five dissents, Alito found for the employee four times, each time reversing a lower-court verdict in favor of the other side. But in close cases in which the evidence of discrimination was present but subtle, Alito downplayed potentially powerful facts. These cases ought to turn on how the people who heard all the testimony—in other words, the jury—evaluated its credibility. Yet Alito has freely substituted his own dismissive reading of the evidence for a jury's verdict.
Consider Barbara Sheridan, once one of five head captains at a restaurant in a hotel owned by DuPont. Sheridan sued for sex discrimination after she was denied a promotion to manage the hotel's multiple restaurants. Up to that point, she'd received a series of steady promotions, strong evaluations, and raises, and after 10 years on the job she'd become a supervisor. In 1991, DuPont decided to create a new post of manager for the hotel's multiple restaurants. The company didn't advertise the job, considered only five male employees, and refused to consider Sheridan. One of the men was hired, and Sheridan complained of sex discrimination. She was subsequently demoted and then left the hotel.
At trial, DuPont claimed that Sheridan was demoted because her performance went downhill after she was passed over for the manager's job. In 1992, her bosses investigated her for comping—giving away food and drinks for free—and then started keeping daily records of her activities. But at trial, Sheridan argued that the accusations and recordkeeping were in retaliation. She poked big holes in DuPont's proof that she'd been comping (she had been out on jury duty on three of the dates that the supervisor recorded her doing it). And she testified that when she tried to talk to a key supervisor in the company of male employees, he ignored her and spoke only to them.
Sheridan won her suit before the jury. But the judge overseeing the trial overturned the judgment, as judges can do when they don't think the evidence presented at trial meets the legal standard for liability. Sheridan appealed. Her case was eventually heard by all the judges of the 3rd Circuit. Judge Dolores Sloviter wrote the majority opinion for herself and 11 other judges. She rejected the trial judge's ruling and said that Sheridan had presented sufficient evidence to support the jury's verdict. And she used the case to decide a tricky question: whether employees suing for discrimination under Title VII of the Civil Rights Act necessarily win once they've made a " prima facie" case of discrimination and then shown that their employer's stated reason for firing or demoting or otherwise dinging them wasn't the real reason. Sloviter—along with five other appeals courts—said that yes, employees do win if they make that showing.
Alito responded in a lone dissent. He wanted a different result, and also a different rule: proof not only that an employer's explanation was false, but also "that intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the challenged employment action." In other words, he wanted Barbara Sheridan to catch her supervisors in the act of going after her for gender-related reasons. He wanted a smoking gun. And because Barbara Sheridan didn't necessarily have one, he didn't care that the jury had believed her. He saw in the record "great friction" between Sheridan and DuPont, but no evidence that "the reason for the animosity between the plaintiff and her supervisors was gender rather than sheer personal animosity." No discrimination—just a pissed-off woman who couldn't get along with her male bosses.
In a 2000 case, Reeves v. Sanderson, the Supreme Court rejected both Sloviter's rule (employee always wins if she shows her employer's rationale wasn't the real one) and Alito's higher standard (employee only wins if she shows her employers were motivated by discrimination). As Yale law professor Vicki Schultz said when I asked her about the case, Alito's analysis wasn't a bad reading of the higher court's precedent at the time (in particular the 1993 case St. Mary's Honor Center v. Hicks). But Alito would have decided the case on purely technical grounds. And his approach would have led to a less fair result than Sloviter's rule.
More bothersome was Alito's dismissive treatment of the indirect evidence Sheridan amassed. Schultz pointed out that Alito failed to take into account the possibility of sex stereotyping at DuPont—the idea that Sheridan's problems stemmed from her refusal to stay in the role that her male supervisors were comfortable with. Sandra Day O'Connor, who wrote the majority opinion in Reeves, understands the problem of sex stereotyping and has used it to craft fair evidentiary rules in other cases. Maybe when Alito sits in her seat, some of that understanding will rub off on him. Somehow, I doubt it.