Cognitive Illiberalism, Summary Judgment and Title VII

Transcription

1 Cognitive Illiberalism, Summary Judgment and Title VII The Employee Rights Advocacy Institute for Law & Policy Symposium Trial by Jury or Trial by Motion? Ann C. McGinley William S. Boyd Professor of Law Boyd Law School UNLV April 23, 2012

2 Dan Kahan, David Hoffman, Donald Braman

3 What is Cognitive Illiberalism? Empirical study of Scott v. Harris Police chase Question of whether a reasonable jury could find Scott used excessive force to drive Harris off road Supreme Ct watched video of the chase scene Concludes 8 1 no reasonable jury could find excessive force

4 Kahan study Is it true empirically that a reasonable jury could only conclude that the force was not excessive? 1,000 subjects diverse backgrounds Viewed videotape Asked questions of subjects

5 Study questions Did Harris pose a risk to police and public? Was it worth the danger to the public for police to engage in high speed chase? Who was at greater fault of risk posed? Did danger posed by Harris justify Scott s decision to end the chase in a way that threatened Harris s life?

6 Disagreed/Agreed with Court Significant Minority African American Democrats Liberals Egalitarians Communitarians Majority Caucasians Republicans Conservatives Hierarchical beliefs Individualists

7 Naïve Realism Social Psychology People aware that cultural identities affect how others view facts BUT Blind to how their own cultural identities affect their view of the facts

8 Leads to cognitive illiberalism Judges influenced by their own cultures, but unaware of influence (naïve realism) Proclaim no reasonable jury could disagree Appear dismissive and smug Causes others to resent and distrust Escalating cycle of recrimination and distrust = Cognitive Illiberalism

9 Kahan recommends Judges practice humility Avoid granting summary judgment when judge can imagine that a significant subcommunity will disagree with the judge s factual findings One purpose of jury = democratic legitimacy

10 Ricci v. DeStefano Justices (in majority) practiced naïve realism Led to a state of cognitive illiberalism Judges should have practiced some humility Question: would a significant subgroup see the facts differently?

11 Racial Minority Representation New Haven 1972 Title VII amended to cover public entities 1973 only 3.6% New Haven firefighters were racial minorities black firefighter organization sued for entry and then for promotions 2010 (chart)

12 2003 Promotional Tests New Haven Fire Department Hired Consultant (IOS) to create exams No Blacks; only Two Latinos scored highly enough for promotional lists CS B hearing Threw Out Results Disparate Impact on Blacks, Latinos

13 2 Problematic Policies CBA from years earlier required a 60%/40% weighting of written/oral portions of test City instructed IOS to not change this Rule of three & ban on banding Must hire from top 3 candidates Banding forbidden by 1/04 state court injunction

14 Banding All rounded up to 91 (considered one for rule of three purposes) Allows for consideration of more candidates

15 Ricci v. DeStefano 17 whites and 1 Latino sue alleging disparate treatment based on race 2d Cir. panel (Sotomayor) City wins SJ granted to defendant S.Ct. grants judgment to plaintiffs

16 New Legal Standard Announced City must prove it had a STRONG BASIS IN EVIDENCE that the tests: 1. Not job related (and not consistent with business necessity) OR 2. Less discriminatory alternatives existed

17 Substance Values DT over DI Disregards 1991 CRA Ahistorical and acontextual approach Favors majority over minority. History of fire dept structural discrimination is more a problem for minorities

18 Procedure Granted summary judgment to the plaintiffs New Legal Standard imposed on defendants Do not remand for fact development All facts based on CSB hearing Quoted Scott v. Harris: City s assertions are blatantly contradicted by the record.

19 Genuine Issues of Material Fact? Job Relatedness Less Discriminatory Alternatives Firefighters IOS President Dr. Hornick 25 yrs experience creating tests Has testified as expert on both sides of litigation 2003 test very high disparate impact unusual

20 Firefighters Mixed testimony about fairness, appropriateness of test and availability of materials Some testified questions not relevant to New Haven (supports testimony that IOS never showed questions to anyone at New Haven for approval) Others testified materials not available uniformly. Expensive and took long time to get them. Some had materials before others.

21 Availability in Light of History of Firefighting New Haven Irish and Italian Immigrants Roman Catholic discrimination Jobs Passed from Fathers to Sons Materials more available to those with relatives in the force? Three Bohan Brothers Box 22 Associates, NEW HAVEN FIREFIGHTERS (2005).

22 60/40 Weighting African American firefighter s union rep testified: Bridgeport much higher percentage of minorities in supervisory jobs Attributed to system that weighted oral tests more than written tests

23 Dr. Hornick no internal check to assure test was accurate and relevant 60/40 weighting system = Disp. Impact Multiple choice test not best measure Assessment centers: leadership, command presence, interpersonal, management and technical skills

24 Chad Legal Pres. IOS Bound by the 60/40 weighting system Did not consider assessment center Did not try to assess command presence Supported Hornick s testimony

25 Questions of fact created by testimony Was test accurate and valid for New Haven? Were materials more available to whites? Did 60/40 weighting system create disparate impact which could be ameliorated? Would assessment center have created less discriminatory alternative?

26 Court s response: Naïve Realism? Court credited testimony of Chad Legal; ridiculed Dr. Hornick motivated by interest What about Legal s interest? Ignored testimony about availability of materials, inaccuracy of test questions Assumed 60/40 weighting was valid because part of CBA in 1980 s; ignored testimony about effect of weighting

27 Reliance on Anti Race Norming Provision of 1991 Act Court also used the anti race norming provision of the 1991 Act to support its conclusions Stated because of the provision could not consider changing weighting

28 Assumes assessment centers not available Relies on 1 statement in the record by Frank Ricci that assessment centers not available Ricci not an expert on this point Evidence in record that other cities use assessment centers and that they produce a better representative mix

29 Assumes banding not permissible Acknowledged state court injunction might not be dispositive on federal law, but Said banding likely violates anti race norming provision

30 Bottom Line Ct made credibility determinations and drew inferences in favor of the moving party Ct refused to remand even though there was almost no record below and new legal standard Majority apparently imposed its own view of the facts

31 Concurrences

32 More evidence of Court s overreach Scalia: Disparate impact is unconstitutional Alito credited facts in record (taken mostly from plaintiffs brief) that an African American preacher influenced the Mayor to throw out the results View of colorblindness influenced view of facts

33 Cognitive Illiberalism? Majority Didn t recognize its biased interpretation of facts No reasonable jury could conclude otherwise Should have imagined that other subcommunities might find facts differently Should have exercised judicial humility Contributed to cognitive illiberalism, distrust Created issues of democratic legitimacy of Court