Appellate Rulings in 2016 Reveal “Big Picture” For Race Discrimination
Earlier this summer, voting rights advocates won a stunning string of victories in federal courts across the country. In one decision after another, courts struck down voting restrictions enacted by state legislatures emboldened by the Supreme Court’s myopic Shelby County decision.
Of particular note was the Fourth Circuit’s decision in North Carolina State Conference of the NAACP v. McCrory, a must-read for all civil rights litigators. At issue were a series of voting restrictions that the appeals court found “target[ed] African Americans with surgical precision.” Reversing the district court, the appeals court held that the law was the product of intentional race discrimination.
What is so important about this decision is the way in which the appeals court calls out the district court for its failure to properly assess the evidence – that is, to recognize the big picture of race discrimination.
In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.
The evidence showed that the Republican-controlled legislature initiated work on the election law the day after the Supreme Court issued the Shelby County decision, freeing the state from its obligation to obtain Justice Department approval for changes to its voting procedures. The legislature specifically requested and obtained data on the use of various voting mechanisms, by race, and then enacted restrictions that, while neutral on their face, would disproportionally inhibit voting by African Americans. The legislation was rushed through in three days, on a straight party line vote. Despite this record, the district court concluded that the law was nothing more than politics as usual -- one party “countering the recent success by another party.”
The panel in McCrory methodically explained how the lower court wrongly discounted clear evidence of racially polarized voting and decades of historical (and quite recent) efforts to deprive African Americans of voting rights in North Carolina.
It faulted the district court for “focus[ing] on certain minor facts instead of acknowledging the whole picture.” As one example, the judge failed to recognize the suspicious sequence of events leading to the passage of the bill, including the way the legislation was rushed through. The district court, donning analytical blinders, had concluded only that the process was “within all of [the legislature’s] procedural rules.” Similarly with respect to the overwhelming evidence of disparate impact on African American voters, the district court “recognized the undisputed facts as to the impact of the challenged provisions [but] simply refused to acknowledge their import.”
In sum, the Fourth Circuit observed that the district court’s error:
resulted from the court’s consideration of each piece of evidence in a vacuum, rather than engaging in the totality of the circumstances analysis. . . Any individual piece of evidence can seem innocuous when viewed alone, but gains an entirely different meaning when considered in context.
The district court assessed the evidence in a fashion much too familiar to those of us who represent victims of employment discrimination. Rather than evaluating the totality of the circumstantial evidence of intentional discrimination, the court considers each fact in isolation, asking whether – standing alone and without context – that fact proves discrimination. As no single piece of evidence can ever carry that burden, the court assigns each fact no weight or construes it in a benign fashion. It continues through the evidence, isolating each tree and thereby obscuring the forest. This powerful decision can be used to challenge such flawed reasoning.
There are, perhaps, other promising signs that appellate courts may no longer indulge the analytic gymnastics that permit district courts to discount and deny discrimination in the workplace. The Seventh Circuit recently addressed this issue in a national origin and hostile work environment case, Ortiz v. Werner Enterprises, which – like so many other employment discrimination cases – was dismissed by the district court on summary judgment. The district court had catalogued evidence as either “direct” (such as the racial slurs abundant in the case) or “indirect” (other circumstantial evidence) and then asked whether either bucket alone presented a “convincing mosaic of discrimination.” Unsurprisingly, neither did. The appeals court reversed and condemned the lower court’s analytic framework:
The district court’s effort to shoehorn all evidence into two “methods,” and its insistence that either method be implemented by looking for a “convincing mosaic,” detracted attention from the sole question that matters: Whether a reasonable juror could conclude that [the plaintiff] would have kept his job if he had a different ethnicity and everything else had remained the same.
Fed up with so many lower court decisions using this specious reasoning, the panel observed that “[t]he use of disparate methods and the search for elusive mosaics has complicated and sidetracked employment discrimination for many years.” Ironically, the “convincing mosaic” language had originally been adopted by the appeals court in earlier cases to prevent the artificial differentiation of “direct” and “indirect” evidence. The mosaic language had instead morphed into an additional legal test, layered on top of the other tests – the equivalent of “legal kudzu.” With the acquiescence of the rest of the Seventh Circuit judges, the panel definitively overruled this “rat’s nest of surplus ‘tests’,” and explained -- in the clearest possible terms -- that “all evidence belongs in a single pile and must be evaluated as a whole.” The panel reversed and remanded the case for trial.
These important and encouraging decisions deserve close attention. Thanks to the Fourth and Seventh Circuits, the continuing scourge of race discrimination, so obvious to many laypeople, has been made easier for federal judges to see as well.