August 25, 2017
Unequal: How America’s Courts Undermine Discrimination Law
Reviewed by Katie Eyer, Associate Professor, Rutgers Law School
Employees who believe that they have experienced discrimination face long odds in bringing discrimination litigation against their employers. Less than 5% of discrimination plaintiffs ever achieve any form of litigated relief. Discrimination cases are dismissed at startlingly high rates across virtually every procedural juncture (including after a plaintiff-favorable jury verdict). The rates of dismissal in discrimination cases are much higher than the rates of dismissal for virtually any other substantive category of federal claims. And yet debate remains regarding the causes of these low levels of success, with some contending that discrimination lawsuits are unfairly dismissed, while others argue that a glut of non-meritorious lawsuits is to blame.
In their excellent recent book, Unequal: How America’s Courts Undermine Discrimination Law, Sandra Sperino and Suja Thomas look behind the numbers and provide a stark picture of the current state of employment discrimination law. As Sperino and Thomas document, employment discrimination cases dismissed by courts are not (or at least certainly not exclusively) the frivolous claims that some commentators suggest. Rather, they include cases that most of us would regard as clearly implicating core anti-discrimination values. And yet, as Sperino and Thomas put it, the world of anti-discrimination law now lives in an “alternative reality.”
Here, no discrimination happens when a supervisor gropes a woman’s breast, so long as the supervisor only does it one or two times. In this world of federal discrimination law, some judges declare it is legal and not discriminatory for an employer to give a worker a negative evaluation based on the color of her skin. This is not discrimination. In this alternative universe, when an employer calls a woman a “cunt,” a “whore,” and a “bitch,” this is not evidence that the supervisor is biased. When a supervisor says “all blacks are lazy” or uses vile racial epithets, this is not evidence of racism. These are simply stray remarks that the judge can disregard.
Much of Unequal is dedicated to a careful analysis of the doctrines that facilitate judicial dismissals in the face of such evidence. As Sperino and Thomas document, judicially-created doctrines that are obviously biased in favor employers—such as the “stray remarks” and the “honest-belief rule”—play a key role in facilitating judges’ disregard of clear evidence of discrimination. But so too do doctrines that appear entirely neutral, or that were originally intended to benefit employment discrimination plaintiffs, such as the McDonnell Douglas test or sexual harassment doctrine. Collectively, Sperino and Thomas make a compelling case that the vast architecture of doctrinal embellishment that has grown up around employment discrimination litigation operates to the detriment of employment discrimination plaintiffs, whose cases are often “sliced and diced” with little common-sense consideration of whether they have experienced discrimination. Today, many employment discrimination decisions look less like a careful consideration of whether discrimination in fact occurred and more like “a rote sorting process,” in which a “predetermined set of questions” determines the outcome—almost always, a loss for the employee.
For those who care about the eradication of continued employment discrimination in our society, Sperino and Thomas’s book is a call to action. And indeed, Sperino and Thomas’s final chapter is a call to policy makers, judges, and even employers to change the current state of affairs. But even for those who may not share Sperino and Thomas’s perspective—or who may lack the position or power to effectuate change—Unequal is essential reading. In one slim volume, Sperino and Thomas have laid out concisely virtually all of the doctrines that play a key role in defeating claims of intentional discrimination brought by employees today. They have provided a wealth of detail of how those doctrines, in real world cases, allow employers to prevail, even in the face of explicit evidence of discrimination. In short, Unequal’s eye-opening and informative account is a valuable read for most anyone with a stake in the current state of anti-discrimination law—judges, policy makers, lawyers, teachers and scholars of discrimination law, employers and most of all employees.
 Unequal at 2.