Although Judge Alito has claimed repeatedly during his confirmation hearings that judges must be “open-minded” when evaluating cases that come before them, and has sought to convey that impression of himself, in fact his testimony belies that he is “open-minded.” In particular, Judge Alito today, in responding to questions from Senator Biden regarding Alito’s consistent record against plaintiffs in employment discrimination cases, made it clear that he does not approach such cases with an “open-mind.” To the contrary, when it comes to Title VII employment discrimination cases reaching the appellate courts, Alito presumes that the plaintiff — the person claiming discrimination – does not have a strong case.
Specifically, Senator Biden questioned Alito about his dissent in Bray v. Marriott Corp., 110 F.3d 986 (3d Cir. 1997) (en banc) cert. denied, 521 U.S. 1129 (1997), in which he disagreed with the court’s ruling that a sex discrimination plaintiff had put forward sufficient evidence to present her case to a jury. Alito responded:
Well, this case was one of quite a few that we get that are on the line, and we have to — and I think when you think about the nature of the appellate system, it stands to reason that it’s going to work out that way. The really strong cases tend to settle; the really weak cases are either dismissed and not appealed or they settle for a modest amount. So the ones that are hotly contested on appeal tend to be the ones that are close to the line, whatever the legal standard is.
(emphasis added). Thus, when a Title VII case comes before Judge Alito on appeal, he has already decided that it is not a “really strong case.” Accordingly, a victim of employment discrimination will always have an uphill battle before Judge Alito. That is not the situation when a judge truly has an “open mind.”
Judge Alito’s dissent in Bray shows the consequences of his view of Title VII cases. Judge McKee, writing for the majority, sharply criticized Alito’s dissent, stating that “Title VII would be eviscerated if our analysis were to halt where [Alito’s] dissent suggests.”[1] Likewise, Judge Alito’s dissent in Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc.), cert. denied, 521 U.S. 1129 (1997), further demonstrates the uphill battle that a victim of employment discrimination has before him. In Sheridan, which was heard en banc — before the full court — ten of eleven judges agreed that a victim of sex discrimination had enough evidence to at least present her case to a jury; Alito alone disagreed. In the majority’s opinion, Judge Sloviter sharply criticized Judge Alito’s dissent from the “otherwise unanimous” decision, pointing out that he had provided “no reason why a plaintiff alleging discrimination is not entitled to the real reason for the personnel decision, no matter how uncomfortable the truth may be to the employer.”[2]
[1] Bray at 993.
[2] Sheridan, at 1070.