“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In March 2019, Trump judge Kevin Newsom authored an en banc opinion for the Eleventh Circuit making it dramatically harder for victims of illegal job discrimination to have their day in court when there isn’t a “smoking gun.” As the dissent observed, the court took the balanced approach established by Congress and the Supreme Court and “drops an anvil on the employer’s side of the balance.” The case is Lewis v. City of Union City. Trump judges Elizabeth Branch and Britt Grant joined Newsom’s opinion.

Jacqueline Lewis, an African American woman, worked as a detective with the Union City, GA police department. For health reasons including a previous heart attack, her doctor advised her not to engage in two mandatory trainings. In response, the department put her on unpaid leave until she could get medical clearance, and then fired her after 21 days. This was much shorter than the 90-day administrative leave given to two white men for being physically unfit for duty. Citing this different treatment, Lewis sued on the basis of discrimination on the basis of race and sex, as well as perceived disability.

Judge Newsom and the Eleventh Circuit majority upheld dismissal of her case before she could even get to trial, by increasing what courts have required the person bringing the claim to show at the very first stage of a case claiming they were discriminated against. Under longstanding Supreme Court precedent, all Lewis has to do to get past this first stage is show that the employer treated her worse than similarly situated people of a different race, sex, religion, etc. Plaintiffs haven’t needed to prove their cases at this early stage, but instead only have to present facts that on their face show different treatment.

The burden then goes to the employer to demonstrate some non-discriminatory, work-related reason for what they did. If it does so, then the plaintiff has to prove that the employer’s excuse is a pretext. It is in these last two phases where the parties debate details such as whether the examples of better treatment involve similar enough situations to be valid comparisons.

But Newsom’s opinion put that debate at the very beginning of the process. The judges looked at the details of all three employees and found differences, making them conclude that Lewis hadn’t even made the basic facial showing of discrimination. As a result, they upheld dismissing her lawsuit rather than letting her engage in discovery (such as getting relevant documents from the employer) and argue her case before a jury.

But as dissenting Judge Robin Rosenbaum explained (joined by fellow Judges Beverly Martin and Jill Pryor), the major Supreme Court precedent establishing these stages did not probe more closely into the comparisons until later in the proceeding, when the employer is providing non-discriminatory reasons and the plaintiff is arguing those reasons are simply pretext.

Stressing that most employers know better than to be open about discriminatory intent, Judge Rosenbaum wrote:

An employee often finds herself at a significant disadvantage to an employer when it comes to knowing the reasons for the employer’s employment decision and to having access to information concerning both that decision and potential comparators. So we have recognized that the prima facie case is designed to include only evidence that is objectively verifiable and either easily obtainable or within the plaintiff’s possession. [internal quotations and citations removed].

But not anymore, at least in the Eleventh Circuit. Working people in Alabama, Florida, and Georgia are out of luck.