On demand 1h 8m 48s Intermediate

Litigating Dishonest Discrimination Cases

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Litigating Dishonest Discrimination Cases

Prior to Brown v. Board and the passage of the landmark civil rights laws of the 1960s, perpetrators of discrimination were clear in their reasons for what the law now recognizes as unlawful conduct.

While civil rights laws have a huge impact in eradicating what some call “honest discrimination” where the culprit admits his/her/its reasons for wrongful conduct, the laws have given rise to new schemes that – often harder to detect – are designed to achieve the same discriminatory impact.

This one-hour lecture will outline the trajectory of our discrimination laws, the rise of dishonest discrimination, and provide practical tips on litigating discrimination cases where proof is complex.

Transcript

- Hello, my name's Reuben Guttman and I'm with the firm of Guttman, Buschner & Brooks, I teach equal protection at American University and I study discrimination and the law. Today we're gonna be talking about a concept that we call dishonest discrimination and we're gonna talking about dishonest discrimination litigation challenges, so here is what we're going to do over the next hour or so. First, we're going to review what we call overt discrimination embedded in the rule of law from the nation's inception. Early on, those who perpetuated discrimination were honest about it: hence, the facts were easy to prove and often not in dispute. Yet, the early problem faced by civil rights lawyers was that the laws provided no relief from even undisputed admissions or events of discrimination, as we promulgated constitutional and legislative prescriptions against discrimination, culprits concealed their wrongful conduct: hence, the rise of what we call dishonest discrimination with more difficult proof. To complicate matters of course in recent decades, course have implemented procedural changes that opposed additional hurdles for today's civil rights lawyers, so what's our task over the next hour? Our task over the next hour is to understand the obstacles so that we can work to overcome them and vindicate the rights of those individuals, the voiceless, who need their rights vindicated under the discrimination laws that exist in this country and throughout the various states. In order to do that, we need to understand this nation's history with regard to discrimination, what we call the trajectory of discrimination from our nation's inception. We had of course, honest discrimination and that honest discrimination appeared in the Constitution in three instances, the 3/5 Clause, Article IV Section 2, Article I Section 9 and so what I wanna tell you is, as this nation talks about all the statutes memorialize, inhaling the confederacy and the statutes that need to be taken down, school children throughout this country are still being given copies of a constitution that is scarred with these provisions. These provisions that memorialize our nation's history with regard to slavery, so first 3/5 Clause, Article I, Section two, Clause three, "Representatives and direct taxes shall be apportioned among the several states, which may be included within the Union, according to their respective numbers, which will be determined by adding to the whole number of free persons, including those bound to service for a term of 10 years and excluding Indians not taxed 3/5 of all other persons." Article I, Section two, Clause three, the Southern or Confederate states counted slaves as 3/5 of a person. Now, if you pick up a constitution today one's distributed in schools throughout the nation, elementary schools, middle schools, high schools, you will see this clause. You'll also see Article IV, Section two in the Constitution, "No person help the service or labor in one state under the laws thereof, escaping into another shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." and this is a clause mandating the return of slaves who escaped from their master again in the Constitution, in the very constitution that's handed out in schools today. Finally, Article I, Section nine to the Constitution, "The migration or implication of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1,808, but a tax or duty may be imposed in such importation, not exceeding $10 for each person." the Constitution of the United States, the very constitution that governs our republic at its onset, acknowledge the importation of slaves. In 1857 of course, we know about the decision in Dred Scott v. Sanford, Dred Scott was a citizen or alleged to be a resident of the state of Missouri, he had gone to a free territory. He came back to Missouri and his claim under Missouri law was that once free, always free, the case went to the United States Supreme Court, it had gone through the federal system and Dred Scott had sued the individual who actually assumed the right to his title as a slave and that person was in New York at the time and hence he was claiming diversity of citizenship and the Supreme Court in a hundred or so page plus page decision by Justice Taney, the former Attorney General of the State of Maryland, who rose to be the Chief Justice of the United States Supreme Court said in the first instance that the court had no jurisdiction because in fact, there was no diversity of citizenship because Mr. Scott was in fact not a citizen, slaves are not citizens is the first ruling in Dred Scott. The second part of the decision noted that owning a slave is a property right, protected by the Fifth Amendment and how did that that ruling come down? Well, Mr. Scott had traveled to Wisconsin and Wisconsin was a territory at the time, part of the Louisiana Compromise and a Louisiana purchase and as a consequence of the Missouri Compromise came in as a free territory and the court determined that it couldn't have come in as a free territory because to do so would've deprived slave owners of their Fifth Amendment due prices for process right to property and a slate is property and so here's what Justice Tanney wrote, "A free negro of the African race whose ancestors were brought to this country and sold as slaves is not a citizen within the meaning of the Constitution of the United States." and then he went on, "But it is too clear for dispute that the enslaved African race were not intended to be included and form no part of the people who framed and adopted this declaration for if the language as understood in that day would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would've been utterly and fragrantly inconsistent with the principles they asserted and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation." and so what Justice Taney was saying is that the founding fathers from the originalist lens that he looked, one would call it an originalist lens. He was saying that the founding fathers actually had no intent for a person like Dred Scott to be considered a citizen and have the same rights as others. Of course, we're also familiar with the Supreme Court's decision in Plessy v. Ferguson at decision created or affirmed the doctrine is separate but equal and Justice Brown and Plessy wrote, "The object of the amendment referring to the 14th Amendment, was undoubtedly to enforce the absolute equality of the two races before the law. But in the nature of things, it could not have been intended to abolish distinctions based upon color or to enforce social as distinguish from political, equality or a commingling of the two races upon terms unsatisfactory to either, if the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences and the attempts to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically, if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." So the 14th Amendment with its equal protection and due process clause was adopted in 1868 and Plessy is a case obviously rising under the 14th Amendment and not withstanding the notion that the 14th Amendment was designed to create equality among the races through both the due process clause and the equal protection clause, Plessy v. Ferguson was a clear pushback and it said that you create equality by having separate but equal and the notion that the two races can be separate is the notion that that lived for some time and began to be eaten away through the works of the NAACP Legal Defense Fund and of course its lead attorneys, Charles Hamilton, Houston and Thurgood Marshall. But what I'm trying to explain to you is that we have a history of clear racial discrimination in this country, a history which is acknowledged or was acknowledged by the highest courts of this land and indeed, when you get to the case of Corrigan v. Buckley in 1926, Corrigan held that the use of the courts to enforce discriminatory covenants that run with the land does not implicate constitutional rights and the facts of this case are summarized in 1922, the defendant entered into a contract by which the defendant Corrigan, although knowing the defendant occurs to be a person of the Negro race, agreed to sell her a certain lot with dwelling house included within the terms of the denture and the defendant Curtis, although knowing of the existence in terms of the contract of sale be carried out and despite the protest of other parties to the indenture agreed to purchase it, the defendant Curtis demanded that this contract of sale be carried out and despite the protest of other parties and to the indenture, the defendant Corrigan had stated that she would convey the lot to the defendant Curtis, the bill alleged that this would cause irreparable harm to the plaintiff and the other parties to the indenture. So the Supreme Court of the United States in Corrigan v. Buckley is saying unequivocally, "That the courts of this land can be used to enforce covenants that restrict the sale to specific races and that's the pronouncement from our chief spokesman on the rule of law in this country in 1926, 1948 in Shelley v. Kraemer, a case that is hailed by law professors and taught in law schools across the country. The court revisited to some degree the decision in Corgan and it said, "We conclude therefore, that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to positioners by the four 14th Amendment, so long as the purposes of those agreements are effectuated by voluntary adherence to their terms it would appear clear that there has been no action by the state and the provision of the amendment had not been violated, so what am I'm reading to you a passage from Shelley v. Kraemer where the court had said that, "To use the courts to enforce these covenants was a violation of the 14th Amendment." but by the same token, as long as private parties make agreements that do not need or require court enforcement or the State action is not invoked through the court system, the Supreme Court's saying, "That's okay." So in 1926, the court in Oregon is okaying even the use of State and federal courts to enforce these restrictive covenants and in 1948, the court is saying, "It's okay to make these restrictive covenants, just don't use the courts to enforce them." and so to a large extent after 1948, the court still koshered, if you will the idea that private parties can make these agreements and so we notwithstanding the existence of the 14th Amendment, which was adopted in 1868 and designed essentially one would think as taught to students today to create an equal environment, we have the Supreme Court eating away at what we would say was the goals of the 14th amendment. One is obviously through the Plessy decision and two is through these decisions involving land transactions and of course there are other decisions, what I would call honest discrimination, the Supreme Court and the various state courts making clear that the races are in fact not equal, not as a matter of science, but from the vantage point of jurors. So in Pace v. Alabama 1883, the Supreme Court of the United States upheld Alabama's anti-miscegenation law and of course in 1967, it wasn't until 1967, obviously many, many, many years later that doctrine articulated or rule of law articulated by the Supreme Court in 1883 was revisited in the case of Loving v. Virginia and violations of the due process clause and equal protection clause of the 14th amendment were found to have occurred. But meanwhile, there were a multitude of states that had promulgated these anti-miscegenation laws, meaning that obviously the races could not intermarry and here's an example, State v. Pass 1942, were in the middle of a war in fact, World War II and those of all races were being tasked to ironically, as Ruth Bader Ginsburg would later say in her brief Reed v. Reed, "Defend the Constitution of the United States by putting their lives on the line in Europe and in Asia." and by the same token when they come home, these people came home, they found that the courts were determining that they were not in fact equal in what they had been fighting for, to some degree was a myth and so we see in State v. Pass 1942, the Supreme Court of Arizona upheld the state's anti-miscegenation law, while holding the persons of mixed races could not legally intermarriad and so again, why am I telling you this? I'm telling you this because if you are a civil rights lawyer bringing cases today, you need to understand that your case, the one that you're bringing today, sits in a context on the shoulders of history that has been adverse perhaps to the clients that you are representing and if you go into a civil rights case today, you need to understand the history because you need to understand the challenge and we're gonna talk about why the challenge is even to some degree more acute today. And we had a series of cases brought by the NAACP LDF Legal Defense Fund as I would say, spearheaded by its famed lawyers, Charles Hamilton, Houston and Thurgood Marshall, Missouri v. Gaines, which was a challenge to a rule in Missouri that Mr. Gaines was not entitled to go to the Missouri Law School because because he was black, they refused his admission. The Supreme Court remanded the case ruling in Gaines his favor to the Missouri Court saying, "That if in fact Missouri came up with a black law school that was separate but equal, Mr. Gaines could go go there, but if not then he would have to be admitted to the University of Missouri Law School." As that portion of the case was being litigated, Mr. Gaines disappeared and the case was dropped but nonetheless, were left with a Supreme Court decision that says, "That if a university system at least cannot provide a separate but equal educational opportunity, then it must admit the individual to the institution and to that degree integrate and these are famous cases that cut into and we talk about Missouri v. Gaines, McLaurin v. Oklahoma's State Regents and Sweatt v. Painter and there's a lot of these cases and they cut into the Plessy doctrine of separate but equal, that was part of a strategy by the end of NAACP to say, "You know what, you wanna have a doctrine that says separate but equal, we're gonna hold you to the letter of that doctrine, but you're gonna understand that discrimination racism is a rich man's sport, which means that you then have to put in place a school that in fact is separate but equal." and we saw for example, in a case in Maryland where the Maryland Court of Appeals said that, "You've gotta either have a law school in the state that's separate but equal, or the individual Pearson v. Murray has to go to the University of Maryland." And at first these cases were based on concrete evidence where the individual applicant was basically told, he received a letter and said, "You can't be admitted because of the color of your skin." and so it was honest discrimination in the sense that the victims were told being told precisely why they weren't being admitted and the cases got a little bit more complicated in McLaurin v. Oklahoma State Regions. The University of Oklahoma admitted Mr. McLaurin to a doctorate educational program at the University of Oklahoma, but as you can see from the picture in our graphic, required him to sit in a classroom in a different place in a segregated portion of the classroom and although he was allowed to eat in the cafeteria with the other students, he had to sit in a different section and in Sweatt v. Painter, the state of Texas in fact created a separate law school. But the Supreme Court determinet that separate law school didn't have access to the alumni base, the didn't have the connections that the University of Texas, which Mr. Sweatt wanted to go to, would've otherwise had and so in 1950, when these two cases, McLaurin and Sweattt were handed down by the Supreme Court in the same day, we saw that the court began to open the door to looking at the intangible factors that can evidence discrimination and when you're discriminated against, it's not a case that can be brought in simple terms, discrimination affects people in different ways. You have to view discrimination not from an objective perspective, but from a subjective perspective from the lens of somebody who's being discriminated against and for the first time in McLaurin and Sweatt in 1950, the court opened the door and said, "You know what, we're actually gonna consider these intangible factors and then of course, this led to the 1954 landmark decision by the Supreme Court in Brown v. Board of Education where the court found that separate but equal was not the law of the land, but it did so only asked to schools the Brown case to some degree on its face is limited and after Brown was decided, there was a case, for example, litigated in Atlanta where the city of Atlanta refused to integrate its golf courses and the plaintiff said in fact, "Well, doesn't Brown decide this?" and in order to get a declaration that in fact Brown had the impact of desegregating other places of public accommodation where the state was involved, the golfer had to actually go to court, but Brown if you read it closely says, "Only asked to schools." it's a breakthrough in the law and Brown was founded on expert evidence showing the intangible impact of separate but equal the case points to the importance of expert testimony in civil rights cases, we talked about expert testimony would direct you if you're reading Brown to look at footnote 11, which among other studies it sites to the studies of Ken and Mamie Clark psychologists sociologists who interviewed black children and did the famous doll study. They showed the children black dolls and white dolls and asked them, "Which they'd rather play with" and they showed that segregation, this was the inference that they drew from their analysis. The segregation made children feel inferior and so for the first time the Supreme Court is saying, "You know what, separate cannot be equal, because even if the facilities are equal and the teachers are paid the same and the teachers have the same qualification and the syllabus and the curriculum is the same, the mere fact that you're segregating creates a notion of inferiority and that's based on expert evidence. But in all of these cases, what we're seeing in the first instance is we're seeing overt discrimination as we begin to eat away at discrimination, even through the 14th amendment, there's pushback and so the Supreme Court doesn't remand the five cases that were known as the Brown cases back to the courts and say, "You go figure it out." They held a separate hearing and came up with a decision Brown too, and they said that, "Desegregation shall occur with all deliberate speed." and Thurgood Marshall looks at this and he says to one of his colleagues, "What does that mean?" his colleague says, "s-l-o-w, slow." and Marshall is later quoted again as saying, "s-l-o-w, that's what it means." and if you think about it conceptually, the Brown case arose out of a request for injunctive relief and the idea of an injunction is to prevent immediate or reparable harm and obviously by the time the Brown case has decided that the Supreme Court, Linda Brown is much older, she's perhaps going to a different school and by the time the remedy is carried out, the need for the desegregation may not have been paramount to her. And of course we're talking in Brown about desegregation, not integration and if you're Linda Brown, it's a good ruling because there is in fact a neighborhood school that you can walk to, but if your neighborhood is segregated because of the pronouncements of the Corrigan case and the koshering of private agreements by the Shelly case, desegregation is not gonna do the trick, you need rulings allowing for integration or at least court orders pursuant to those rulings allowing for integration and we don't see that until much, much, much later on. The response to the Brown case was not acceptance and I bring up something called the Southern Manifesto, which was a document signed by 19 senators and 81 representatives in Congress, including some esteem members of the Hill Establishment, Senator Fulbright and Strom Thurmond, I wouldn't say that he's esteem, but Strom Thurmond and Carl Vincent and Sam Raburn and this is an absolute rebuke to the Brown decision. "We affirm our reliance on the Constitution as the fundamental law of the land, we decry the Supreme Court's encroachments on Rights reserve to the States and to the people contrary to establish law and to the Constitution, we commend the motives of those States which have declared the intentions to resist forced integration by any lawful means. We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation." so why am I telling you this? I mean, what I want you to understand is if you look at the trajectory of the efforts to eradicate discrimination in this country and the pushback to the accomplishments that are made, the resistance to that you are in a better position to gird yourself and to prepare yourself when you litigate on behalf of a victim of discrimination, because you can't assume that your case is going to be a welcome case, there is always going to be a percentage of those in this country who are going to look at your position, what I would call a gimlet eye view. Now, basically until the 1960s, we had laws or we had reliance on constitutional pronouncements, the 13th Amendment, the 14th Amendment, the 15th Amendment, which provided rights that were designed to level the playing field and eliminate discrimination. The problem is that those pronouncements were directed towards the public sector, they didn't address Jackie Robinson's problem and his problem of course, when he traveled with the Brooklyn Dodgers, he was not allowed to stay in the same hotel as his white teammates did not address the problems in Mississippi and Alabama where a black man or woman couldn't sit at a lunch counter. And so through the work of Dr. King and the attention that civil rights had gotten through these cases, we began efforts in the sixties to address discrimination, in the private sector and so we enacted the 64 Civil Rights Act, which among other things attempted to eradicate discrimination in public accommodation Title II and in employment Title VII, and interestingly enough, Title VII of the 1964 Civil Rights Act talks about discrimination and employment on the basis of race, gender, national origin and for those who litigate Title VII cases today, it's axiomatic, it's obvious it's a given that gender should be included in Title VII. But in fact, in a speech at Yale University Ruth Bader Ginsburg pointed out to the audience that women gender was only put into Title VII by opponents of the legislation, hoping that the addition of gender would cause its defeat and to their dismay, the legislation actually went through Congress and was signed into law by the president of the United States at the time Lyndon Johnson, with protections for gender, but keeping in mind that as we talk about gender, it wasn't until 1971, seven years after the passage of the Civil Rights Act that the Supreme Court of the United States came down with its decision in Reed versus Reed, which actually applied for the first time the 14th Amendment, the 14th Amendment equal protection clause to gender, 1965 we passed the Voting Rights Act in 1968, we passed the Fair Housing Act. And all of these statutes were targeted at overt discrimination, targeted at overt discrimination, so why do I say that this is the end of honest discrimination? Well, it's the end of honest or overt discrimination and what we see now is a form of discrimination that's more subtle, that employers understood that they couldn't simply say, we're not hiring you because of the color of your skin. A university for example, couldn't send a lender to an applicant and say, "We're not hiring you, we're not giving you, a place in our class because of the color of your skin." they had to create other rationale for doing so, so now the mystery of where we get this term from, Well, Kenneth Clark I told you a little about him, he and his wife Mamie did the doll studies that were the predicate to the brown decision, you'll see their names prominently displayed in footnote 11 or the Brown case and Ken Clark in 1983 gave a speech at the Cleveland City Club and what he said was actually fascinating he said, "We conclude, unfortunately by seeing that the contemporary realities of American racism include, I guess among them Northern denialism, we deny that one of the fascinating things about Northern racism prejudice is that unlike the Southern form that was honest in its statement of racism, Northern racism is characterized by denials, by prejudice, whites and blacks smiling each other, calling each others by first names and thereby diverting attention from dealing with the key and obvious manifestations of racism and substituting in its place affability or the appearance of affability." This is a significant quote because from the vantage point of the litigator who's taking on the civil rights cases, what Clark is basically telling you is that your task is going to be much tougher because when your client faces discrimination on the job or otherwise in public accommodation in housing. The form that it's going to take is not going to be honest, it's going to be more complex, harder to prove, it's not going to be like the case that Thurgood Marshall brought in Austin v. City of Norfolk School District, where he challenged the salaries, the discriminatory salaries of black teachers and he had pay scales that were clear in their form and said, "This is what we're paying black faculty members and this is what we're paying white faculty members." a whole new series of mechanisms were created to discriminate and as a lawyer bringing these cases, you need to understand that in absolutely very clear terms. Now, contemporaneous with the use of the courts to vindicate the victims of the discrimination which occurred through the work of the NAACP and later, for example the ACLU and Loving v. Virginia were two young lawyers in their thirties represented the lovings ultimately in the United States Supreme Court and overturned long settled doctrine with regard to marriage between the races. We had the rise of a consumer movement led by among others, Ralph Nader and that meant using the courts, it meant using the courts to go after some of the big companies and if in fact somebody was injured in auto automobile accident, Ralph Nader taught us all through his book, Unsafe at Any Speed in 1965, that you know what maybe it may not necessarily be the fault of the driver, maybe there was a defect in the car and so with the inroads that were made in the civil rights cases and in the consumer cases and the use particularly of class actions to vindicate the rights of those who were victims of discrimination or victims of consumer impropriety, we saw a series of procedural decisions coming down from the Supreme Court and later even rule changes articulated under the auspices of the Supreme Court that made it more difficult for those seeking to vindicate the rights of these groups to go forward. So for example in 2009, 2007, we see cases called Ashcraft v. Iqbal and Bell Atlantic v. Twombly, these are two very significant Supreme Court cases that altered markedly and perhaps forever the pleading standard. It eliminated a pleading standard articulated in an age old case, Connolly v. Gibson, 1957 and that was the notice pleading standard. In other words the idea was, is that you could file a complaint in court and as long as it put the other side on notice of the impropriety or the relief you're seeking, it could go forward and so if you think about the complaint originally filed by Oliver Brown on behalf of his daughter, Linda Brown, that led to the landmark Brown v. Board of Education, that was a seven page complaint replete with conclusory allegations. Today, when a court looks at a complaint under the Iqbal and Twombly standards, it is the job of the judge as dictated by the Supreme Court of the United States to look at that complaint, take out or not consider for the purpose of sustaining the complaint. Conclusory allegations look only at the factual allegations and determine the plausibility of the complaint and so it altered the Connolly v. Gibson standard markedly and it essentially gave the trial court judge significantly more power as the gatekeeper to determine whether a case goes forward. And now suppose you're, an Hispanic or a black man and you check into a hotel and they say, "We have no rooms at the inn tonight." Well, you need to determine who really is getting rooms, whether that's true, you don't have enough to meet a pleading standard to allege discrimination based on public accommodation, you would need that through discovery and so these cases effectively eliminate it or precluded the litigant from getting to the discovery phase of litigation, which was so necessary to prove up a case of discrimination and again, giving the trial court judge the subjective ability to knock out a case using their subjective perspective and considering the lack of diversity in the courts, one has to think about how that's come down. The Supreme Court issued a number of decision making class actions tougher and in fact the rules were changed, adding a rule 23 allowing an immediate or allowing an appeal would effectively have been an interlocutory appeal from the decision of certifying or not certifying a class and so that delayed the process. So imagine in the Brown case where class action was more or less perfunctory, that case could have been delayed for years, determining whether it could even proceed as a class case and so it was a roadblock. The addition of 23 is a roadblock, a hurdle, an additional hurdle in the way of those seeking to vindicate the rights and then of course in 1993, the United States Supreme Court, in its decision made courts trial court judges the gatekeeper for determining whether an expert would be allowed to be heard by the jury and of course, if you knock out the expert, you may knock out the linchpin of proof in the case and if you consider Brown, as I was talking about before, imagine Brown without the expert testimony that was necessary to show the intangible impact of discrimination lawyers. Well, so we've got a history of discrimination in this country and it's not just private sector discrimination, it's been discrimination that was sanctioned by the Constitution. It was discrimination that was affirmed and perpetuated by the courts, it was discrimination that created environments that set people back and then as the advocates for those who needed relief began to get that relief, albeit in incremental terms, the court responded or the courts responded with procedural hurdles that impeded their ability, so what do you do? What do you do today if you are representing, the aggrieve that I would say is the voiceless, the victims of discrimination. So interestingly enough the rise of the internet and our ability to record and gather information has allowed us to overcome some of the hurdles, even the procedural hurdles that the courts have imposed, at least through the pleading standards and of course, civil rights lawyers need to work harder mine information from a myriad of these previously non-existent sources. So let me go through some of them and talk about some practical advice I had as a preface to this, an old professor of evidence who I respect and admire, he said to me, "Why do you look at YouTube, why do you read E, why do you read Twitter, why do you read LinkedIn, why do you spend any time on that trash?" and I said, "It's where I representing the underdog, the little guy, get an insight into what people are saying, it's where I get to collect evidence." and so YouTube, you gain information on witnesses, you can use that information in complaints, you can use it in deposition prep. Used to be when I got outta law school, I would wonder who is it that wrote these letters that I were seeing in discovery, Who wrote these notes, what does this person look like, how do they talk, what are their proclivities? And sometimes especially with big corporate executives, I can go on YouTube and see their speeches, their meetings sometimes or even recorded their public meetings and it's fascinating and so when I go into a deposition, I almost have a sense of comfort because it's not like I'm questioning somebody I've seen for the first time or similarly at trial, I feel I know this person, I know how they talk, how they respond to queries. LinkedIn, you can learn about the job responsibility and backgrounds of witnesses and plaintiffs, you're about to depose somebody and that individual says, "Well, I don't know anything about that, that wasn't part of my area of responsibility." Well, the truth is that in LinkedIn, a lot of people who are corporate executives or middle managers pump up not only pump up their credentials, but they're candid about what they did because they're looking to get another job. They're looking to promote their qualifications and so they're more than honest about what they did and so almost LinkedIn becomes a truth serum. Twitter, learn about witnesses impulsivity, proclivities and secure 801 statements, the rules of evidence are your friend in law school, they seem like they're your enemy and they're complicated and they're boring and how are they useful at all? But as you begin to put these cases together, 801s is the hearsay rule, 801 . What's not hearsay, statements of a party opponent, not just admissions, but statements of party opponent. And so if an individual tweets out something about race or gender or immigration, that's an admission, that's an admission it's a statement used to be called admission under the rule, now it's called the statement of a party opponent and it's not hearsay and as long as it is what it purports to be, it's a statement made by the person who is listed on the Twitter, it's a question of authentication, it's coming in and it's gonna come in even without testimony, you can just present it to the court. Same with Facebook, you can get background and alert the identity of individuals and though individuals and the witnesses orbit, so person says in a deposition, "I don't know X, Y, or Z.", "well, that's obviously not true, sir, because here's a screenshot of your Facebook page, which shows that he's listed as one of your friends." But more importantly than the depositions, this is free discovery, YouTube, LinkedIn, Twitter, Facebook free discovery that you can get, that can help you secure the information to put in a complaint to deal with the hurdle that the Supreme Court imposed on you as a plaintiff's lawyer under the Iqbal and Twombly decisions. So you can also look at prior complaints, you can search, the dockets through PACER and see what other individuals are entities have said about your defendant. Are there other allegations of harassment or job terminations and are there briefs filed, and do those briefs have have affidavits or their documents attached? So the court documents are, the court dockets are a fabulous repository for information and of course government documents, how should an employer behave? What's presumed to be reasonable? Various States have promulgated guidance on standards of care with regard to the reporting of harassment, that guidance on what the rules that employers should put in place for example, in the workplace and those standards can be admissible under FRE 201 as the court can take judicial notice of them, so what's the point of this discussion as to this topic that I'm talking about? The internet has given us the ability to better investigate cases and gather evidence to overcome the new hurdles and the old days, the defendant was overt and told you why they were discriminating. Now because I would say of the laws that proscribe overt discrimination is going to come in more subtle terms and so you need to dig deeper and how do you dig deeper, well, science and technology through the internet has given you that ability. So one of the types of things that we need to where you're about or we need to see, so the rise of dishonest discrimination has presented as I said, a complexity of proof. Nine times outta 10, we're dealing with pretext, "I didn't hire you because you didn't meet the qualifications not because of your race." or "I didn't promote you because there was somebody better." or "I didn't give you a room in the hotel because the rooms were full." and pretext is just a lie, it's a lie to cover up discrimination and pretext exists because perpetrators know that the law is clear that you can't say you're not giving somebody a benefit or an accommodation because of the race, color, national origin or religeon. And a plaintiff can meet his burden to establish pretext by providing evidence from a reasonable jury could find the employers proffered lawful reasons for acting or are unworthy of credit and what does that mean? That means you have to dig deeper so for example, if you have a case where your client says, "I wasn't hired because of my race." then you need to say to the court, "That's a lie, that's pretext." take on the pretext head on and note as you go into discovery that because this case involves pretext your Honor, your going to need the applications of everybody who applied for a job and every letter of termination and discovery is gonna be broad." and this is necessarily proportional to the needs of the case under Rule 26 because pretext, when an employer opens up the door or says pretext, that opens up the door to broader discovery and so take pretext obviously as a problem, but take pretext as a mechanism to open the door to broader discovery and as I said, don't be afraid to take it on and make it part of your case. Example, "Ladies and gentlemen, Alfred Newman, the managing director of Apex Inc fired Tim Smith because of his race and then lied about Tim's attendance record to justify the firing." say it to the jury, don't hide it, don't hide it. Often a lawyer may hear that, "Well, gee your client wasn't such a good guy and he didn't have the qualifications or this is what what he did." and then the lawyer goes back to the client and says, "You didn't tell me this." It may very well be that the client didn't tell you that, maybe the client was afraid to tell you that, but understand that pretext is always going to occur and in terms of how you investigate, look at how others outside the protected class were treated and with regard to this example, look at the attendance record of other employees, Tim Smith days absent six, Tom Allen days absent 12, Rudy Thomas days absent 22, Bart McGovern days absent four, so maybe my guy had an attendance problem, but his attendance problem pale in comparison to that of other folks. One of the things that employers do or perpetrators of discrimination do is they create facially neutral rules that have the impact of weeding out those groups protected classes that they don't wanna deal with and we call this disparate impact. And the disparate impact theory of litigation prohibits neutral employment practice in the employment sector at least, which will non-discriminatory on their face visit an adverse disproportionate impact on a statutorily protected group and I'm quoting from a case called Andrews v. Board of Regions 565 ESupp 3rd 1343. But the point I'm trying to make and this was an area of litigation that was defined by the United States Supreme Court in Griggs v. Duke Power is again, what an employer comes up with an excuse and says, "Well, it was a neutral rule." then the question for you is, "Well, gee what was the reason for the rule, is it written, how long has it existed?" and so every pretext as we say, opens up the door to additional discovery, understand it, don't be afraid of it. We also have this notion of hostile work environment, we created pretext, we created neutral rules, now we're just gonna make the person's life miserable, hoping that they're gonna leave the job or there's gonna be an environment created where folks don't want to be there or it could be an employment setting, it could be in any other type of setting. The general rule is that isolated incidents typically do not rise to the level of a hostile work environment unless they're sufficiently severe to alter the terms and conditions of employment as to such to create a hostile environment. But you need to argue passionately, you need to say, "Look your honor, this can't be viewed from an objective lens." you need to view it from the lens of a victim and you need to as you go home at night and as you're eating dinner and you're with your kids, you need to think over and over again how you're gonna communicate just to a jury that may not get it or a judge that may not get it. Work up analogies, "Well, ladies and gentlemen of the jury, maybe the word, the improper word was said once, but let me ask you this, would you drink the milk if it had a drop of pee?" is it once enough to create that kind of environment. So there's three types of evidence, we've been talking about the problems let's say talk about the evidence and it's always important to talk about evidence because that's the only way we get to prove our cases. Direct evidence, the evidence speaks for itself as in the video that was used in the Floyd case and the Floyd case is a great example of how modern technology. The advent of iPhone cameras, the fact that everybody is a walking videographer these days has been an equalizer in terms of proof, I mean would that Floyd case have had a different result had it been litigated 30 years ago? So direct evidence speaks for itself, it's evidence that you need not a argue any inferences from, circumstantial evidence the evidence is a peace of a puzzle and we argue the infer in inference from it and of course, the third kind of evidence is statistical. When we talk about statistical evidence, we say what happened was not just a random occurrence, not just a random occurrence, you have a community that is 99% of a particular minority, but the workforce of a particular company in that community is the opposite, let's say it's a hundred percent white, how did that happen? It's not a random occurrence and when you get a statistician to say it's not a random insurance, then you begin to focus your investigation on the cause and you say to yourself, "Well, where were they advertised?" maybe they were advertising in white publications. I had a case many, many years ago where we saw statistical evidence and in the depositions it became clear that the direct was that there to exclude advertising for jobs, the company was to exclude advertising for jobs in newspapers that had a minority readership. Big cases, complex cases, discrimination cases in an era of dishonest discrimination are based on circumstantial evidence or statistical evidence, do not be afraid to make your case on circumstantial evidence. Again, this is not the 1940s or the 1950s where the discrimination was honest, where they told you why they were discriminating, they're hiding their motive, when you hide the motive, then you've gotta rely on circumstantial evidence. Now, don't take my word for this, the law, the rule, the evidentiary rule, rule 401 allows you to do this, the test for relevance, evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action, why did I read you that? You don't see the words or hear the words, direct evidence or circumstantial evidence in there, do you? What weight to give the evidence is for the jury to decide, it's for the jury to decide, if the probative value of the evidence is substantially outweighed and I say substantially outweighed by its prejudice, then it becomes an issue under 403. But the importance of this discussion is to say to you, when you're doing a case of discrimination, "Your Honor, all of the evidence in a case of discrimination almost by definition is gonna be circumstantial because the law precludes discrimination" so a defendant is always going to hide his motive, embrace the use of circumstantial evidence, don't shy away from it. Talk about experts, we saw how experts were utilized in the Brown case, which changed the trajectory of how we vindicate the rights of those who are victims of discrimination, we see it in rule, we saw that for the first time in footnote 11, Look at rule 702, 702 governs the use of experts and figure out quickly at the get go, if your case needs the glue of an expert, either for proof right of liability or for damages. Are you going to need an expert to do that and what kind of expert are you going to need, we'll talk about that in a minute. While the proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of rule 702 are satisfied, the district court is the ultimate gatekeeper and keep that in mind when you evaluate a case, keep in mind that if in fact your linchpin to litigation success in a case is the expert. Keep in mind that that linchpin can be taken away from you, even after you survived a motion to dismiss and a motion for summary judgment with a downward motion sometime before trial, your case could go away if your expert's taken out, so spend a lot of time thinking about that, a lot of time thinking about that. Kinds of experts in these cases, obviously psychologists we talked about statisticians, labor economists in a case called the Nikolova v. University of Texas, "The court noted the burden is on the plaintiff to prove that she was discriminated against because of her sex, not just that gender stereotyping or bias exists throughout society testimony and the nature of serves to educate the jury relating to how stereotypes lead decision makers to selective and dispute consideration of evidence as part of confirmation bias and how subjective conclusions and moving the goal posts with respect to the review of tenure criteria can be conditions in which discrimination can occur. Although unconscious bias is insufficient alone to sustain a claim of discrimination or retaliation, such context is highly relevant to this case." what's the point? Am I saying read this case and you're good, what I'm saying to you is when you've got a complicated case and you see that there's gonna be a need for an expert for the purposes of proving liability, causation or damages, then it's time to go to the law books and look at cases and determine where experts have been used, what they've been used for, and where courts have accepted their testimony and with any of these cases, you've gotta vacillate between fact investigation and investigation of the law back and forth, back and forth, I've gotten more facts, how am I gonna bring those facts into evidence, I've got a proof gap, what are the courts saying about the kinds of experts I can use? And these are complicated cases and you gotta live 'em, you gotta think about 'em, you absolutely have to live them and you have to think about 'em. And obviously if an employer or a business, a place public accommodation, prison system, whatever it is, obviously it dis if it discriminates. One of the things we know about discrimination is that it doesn't pick out a particular person and say, "Well, you're the only black person, I'm gonna discriminate." the discrimination is much broader and it's pervasive and by definition, discrimination is pervasive. And so class actions can be important, they allow the court to see a pattern and discrimination often becomes clearer when you're looking at a larger sampling size, so if you have somebody a big box store where there's a hundred thousand employees and he or she brings a case and says, "Well, I wasn't paid as much as X, Y, and Z." that may or may not be a compelling case to a court. But if you bring in a statistician to show that they've analyzed the salary of, 50,000 particular employees in a particular class and their statistical significance to their pay scales, all of a sudden that becomes more clear and obviously class actions make the cost of showing the pattern worthwhile, class actions may allow for a large recovery through a common fund. And there's an old adage, I have a book on a pretrial advocacy that I co-authored with my colleague J.C. Lore of Rutgers Law School and we quote an old colleague of mine, Henry Bower Jr. from Atlanta, who used to tell me as we were litigating at least one civil rights case. Litigation is a rich man sport, it takes money to litigate and you gotta figure out how you're gonna pay for this case, is it gonna be worthwhile pay for the experts, pay for the depositions, pay for the storage of the electronic information and so obviously that's why class actions are important. We need to talk a little bit about as we finish our discussion here about sharpening your Abuse advocacy, discrimination cases often can be a dispute over he said, she said, he said, she said and you wanna try and make your case on what your opponent said. So I would say as you go through the discovery, particularly the emails and emails are gonna be a wonderful place to get admissions, try to make the case on defendant's own documents and statements. How are you gonna organize those and those with the jury, can you use them in your opening statement to the jury, can you get a reverse motion in that is to say to the court, "We intend to use these documents in opening, we'd like to court to acknowledge a order that they're admissible or get an agreement that they can be used in opening or have a conference with a judge saying that you're gonna use these in opening." And if there's LinkedIn or YouTube videos or Twitter citations or Twitter comments, those are statements of your opposition and try to make your case in the first instance without your having to make the case, but try to make it with their own words. And then obviously fact finders and most people, they want a story, they want a tale, they want you to spin a yarn as my colleague Dick Harpootlian is a fame trial lawyer in South Carolina likes to say. So you need a narrative, assemble the evidence to make the facts tell a story, assemble the evidence to make the facts tell a story. So that at the end of the day, when you assemble the facts, you don't have to glue it together and say, "This is outrageous and they discriminate." the fact finder will say, "Yeah, I get it, it's obvious you don't have to tell me the conclusion." and that's why I always like to say, avoid hyperbole let the undisputed facts make the argument, make the case in facts and statements of your opponent. And at the end of the day, you always wanna appeal to the decision maker, what makes them tick, what is something they'll understand and so use analogies that resonate with the decision maker. View the case from the lens of the decision maker and most importantly, don't drink your own Kool-Aid, don't drink your own Kool-Aid, what do I mean by that? Your client comes to you and says, "I was discriminated against, it was horrible." drill down and you have to say to your client, "This is gonna be a tough case." and they're gonna ask you hard questions and better to hear them from me now and when you wake up in the morning and you think about your case, don't think about all the wonderful things about your case, obviously you need to do that at some point. Think about how your case is gonna be taken apart, how it's gonna be dismissed on a motion to dismiss, how it's not gonna make summary judgment and when you reverse engineer, you don't drink your own Kool-Aid, you don't run around saying, I got the best case in the world, then you begin to plug the gaps or holes in your case. And as I said, force your client to give you the facts that support their claims of discrimination, don't let them talk in hyperbole, the client comes to you and says, "They didn't sell this house to me because of my race." Okay, I get that What specifically supports that conclusion, "They hate me, they gave me a bad look." "When they gave you a bad look what do you mean by that? Were any documents, are there any emails?" begin to let the client talk but begin to drill down on the hard facts. And then obviously when you're analyzing a case, look for nondiscriminatory reasons that justify the defendant's conduct, a lawyer drinks his own Kool-Aid when he does not ask his client hard questions. Well, I want to thank you, I enjoy these presentations, I enjoy the dialogue with an audience that listens to them and emails me. My name is Ruben Guttman I'm at [email protected], if you listen to this and you have any questions, please shoot me an email and I'm always happy to respond, I learned from you and I hope over the last hour you've learned a little bit of something from me and I hope it encourages more importantly you to think about these cases differently and perhaps do some digging and if you find out something that I should be adding to the next presentation, well then I'd want to hear that, so thank you again.

Presenter(s)

RG
Reuben Guttman
Founding Member
Guttman, Buschner & Brooks, PLLC

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