In 2016, the Seventh Circuit issued an opinion that may be a harbinger for an important shift in the federal judiciary’s long-standing employment discrimination jurisprudence. In Ortiz v. Werner Enterprises, Judge Easterbrook reiterated the frustration with the existing “rat’s nest” of tests and standards used in Title VII discrimination and retaliation claims. The note contains two overarching arguments. First, the Supreme Court’s employment discrimination and “rat’s nest” of tests and standards has led to an untenable situation in which federal district courts apply different standards at different stages of litigations. This in turn has caused confusion amongst the various federal courts and has resulted in employee-plaintiffs to unfairly face different burdens across the country. Second, the Ortiz decision evinces that at least some judges and courts are tiring of this “rat’s nest” when it comes to evidentiary standards in employment discrimination cases. To solve this quandary, the federal judiciary should simplify the evidentiary standard at summary judgment so that an employee may present his or her evidence as a whole. With such a holistic standard, an employee need not be concerned with whether the evidence is direct, indirect, merely suggestive, or iron clad. Rather, a common sense evaluation of the evidence as a whole by the judge would suffice.
Zachary J. Strongin,
Fleeing the Rat’s Nest: Title VII Jurisprudence After Ortiz v. Werner Enterprises, Inc.,
83 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol83/iss2/18