The procedure of Title VII

Given my limited knowledge of the details of Title VII, I will not delve too deep into the details of either  Vance v. Ball State University (only those with hiring/firing authority qualify as supervisors) or Univ. of Texas Southwestern Med. Ctr. v. Nassar (but-for cause required for retaliation claims). Instead, I wanted to note the role that procedure plays in both decisions.

Justice Alito's majority opinion in Vance insists that the Court's (seemingly) simpler definition of superviso will be more readily applied to resolve disputes prior to trial--primarily on summary judgment, although it hard not to see this trickling back into Twiqbal-tinged 12(b)(6) decisions. Similarly, Justice Kennedy in Nassar insists that a lesser causation standard makes it "far more difficult" to "dismiss dubious claims at the summary judgment stage" (emphasis addd--is it any wonder our students confuse those terms?). It is not sufficient that the employer could "escape judgment after trial."

The logic here calls to mind Harlow v. Fitzgerald, in which the Court adopted a purely objective  standard for qualified immunity in § 1983/Bivens actions precisely because it would allow more claims to be resolved at summary judgment. But qualified immunity is an affirmative defense vesting in defendant officers a right not to litigate, purely for instrumental reasons--freeing them to focus on serving the public interest without having to deal with the distraction or chilling effect on governmental conduct. One can disagree with that doctrinal logic. But even accepting that, this is vastly different than saying that every defendant has a right to avoid liability prior to trial and that the substantive claim-creating legal rules (as opposed to an affirmative defense) should be interpreted in such a way explicitly to preserve that right. It no longer is enough that the "correct" party prevail--they now must prevail at the right point in litigation.

The other thing flowing through both opinions is concern for juror confusion and the need to make cases easier to grasp and decide. In particular, Alito emphasizes the need for "reasonably clear jury instructions in employment discrimination cases." Of course, the need to make jury instructions more comprehensible does not mean the need to simplify (if not "dumb-down") the substantve law itself. Jurors are capable of understanding and applying difficult legal concepts; the call from scholars has been to present and explain those concepts to the jury in a clearer way.

Alito also insists that "the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof." But on that logic, we should never have jurors deal with affirmative defenses or counterclaims, which necessarily involve different parties carry different burdens of proof. In any event Nassar itself presents the very problem by imposing different causation standards for substantive claims and retaliation claims; as Justice Ginsburg argues in dissent, those types of claims often (as in Nassar itself) are regularly brought together. In other words, contrary to what Vance suggests should happen, Nassar means jurors will have to deal with different theories of causation fairly regularly (unless, of course, the new but-for standard succeeds in keeping retaliation cases from ever reaching trial).