“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
The five Trump judges on the Second Circuit – Judges Richard Sullivan, Joseph Bianco, Michael Park, William Nardini, and Steven Menashi – cast deciding votes in a 7-5 order that refused to reconsider a previous decision by Sullivan and Bianco that dismissed on its face, without even any discovery, a complaint contending that a company policy that refused to hire anyone convicted of any felony illegally discriminates against Blacks. The February 2021 decision is Mandala v NTT Data Inc.
As described previously in this blog, George Mandal and Charles Barnett, two African American men, each received job offers from NTT Data. Both offers were withdrawn pursuant to a company policy, however, when background checks showed that each had been convicted of a felony, with no consideration of background circumstances, what the offenses were, evidence of rehabilitation, or anything else. On behalf of themselves and a class of other African American NTT job applicants, the two filed suit under federal anti-discrimination law, contending that the corporation’s policy had an improper disparate impact on African Americans. In a 2-1 panel decision, Judges Sullivan and Nardini ruled that the complaint should be dismissed as a matter of law, without any discovery, because it pointed only to the disproportionate impact of excluding job applicants because of past convictions with respect to the general population, not the “relevant hiring pool” for NTT. Judge Denny Chin strongly dissented, pointing out that at this early stage of a case, the courts have frequently relied on such national statistics in letting victims of discriminatory practices pursue their cases. A motion was made to the full Second Circuit to rehear the case.
By a 7-5 vote in which the five Trump justices cast deciding votes, however, the full court declined to rehear the case. A concurring opinion by Trump judges Sullivan and Nardini, joined by Trump judge Park and several others, claimed that it was appropriate to require a complaint to allege a “plausible link” between national statistics and the particular job bias claim by using more specific statistics or other information, such as the disparate impact on Blacks of a policy like NTT’s on people who are “more educated than the general population.” According to the concurrence, this was permissible because “common sense” suggests that drawing the inference of discriminatory impact from general population statistics is “too attenuated.” This was based on Supreme Court decisions, the concurrence maintained, that cut back on what they called the “plaintiff-friendly notice pleading standard” and require all federal court complaints to “state a plausible claim for relief.”
Five judges strongly dissented. Judge Rosemary Pooler explained that the panel majority decision and the concurrence took the “wrong approach” to the “plausibility standards” by “making inferences” on its own “favoring the Defendants” while refusing to do so for the African American plaintiffs. Instead of using the “traditional standard” of accepting as true the plaintiffs’ allegations at the motion to dismiss stage, Pooler continued, the panel majority improperly drew a “negative inference” based on its “common sense” view that general population statistics would not apply to the more educated applicant pool for NTT jobs, when it could and should have inferred just the opposite.
Judge Pooler noted that the “flaws” in the majority opinion are “particularly important” because “they undercut Title VII,” the federal law prohibiting employment discrimination. Title VII may be our “most important piece of remedial legislation,” she continued, because it “struck a body blow to the race-based caste system that defined this country for centuries.” But by using “an eccentric and heightened pleading standard” and “importing facts from outside the record,” she went on, the panel majority and concurrence “suggest our Court will find ways to shut the door on litigants seeking to vindicate their civil rights.” As Judge Chin put it in his dissent, the “heightened pleading standard” of the concurrence and the majority “weakens Title VII and threatens to shut the courthouse door to those who may have valid disparate impact claims.”
The longer term effects of the refusal to rehear this case remain unclear. As Judge Pooler suggested, perhaps even the plaintiffs in this case can seek to reopen it and add generally available statistics on the disparate impact of NTT’s policy among more educated job applicants. But at least for now, the deciding votes of the five Trump Second Circuit judges have ended the effort to obtain a remedy for Mandal, Barnett and other African American NTT job applicants and threaten to do even further damage to the promise of Title VII.