The Fiction of Fact in Employment Discrimination Litigation

The Fiction of Fact in Employment Discrimination Litigation (April 2, 2013)

Leah D. Braukman*

           Merriam-Webster defines a fact as “a piece of information presented as having objective reality.”  However, Professor Ann McGinley says that no fact is truly impartial, especially in the context of employment discrimination cases. At the Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination symposium at New York Law School, McGinley discussed the sociopsychological theory that explains this concept: “naïve realism.” 

           Under the theory of “naïve realism,” people are aware that cultural identities influence how others view facts, but are blind to how their own cultural identities affect their view of facts.  According to McGinley, judges also suffer from naïve realism in that they are unaware that they might be swayed by their own cultural identity in their decisions to grant summary judgment in employment discrimination cases.

           A person’s cultural identity can include his or her race, ethnicity, gender, sexuality, religious beliefs, and political affiliations.  During her presentation entitled “Summary Judgment on Equal Pay Claims,” Professor Deborah Thompson Eisenberg cited statistical differences in the percentage of summary judgments granted in favor of defendants in a survey of 500 Equal Pay Act cases based on the political affiliation of the President who appointed the deciding judge and the judge’s gender.1  With regard to political affiliation, Republican-appointed judges grant summary judgment in 67% of Equal Pay Act claims, while Democratic-appointed judges grant summary judgment in 72% of claims.  With regard to gender, female judges tend to grant summary judgment 65% of claims, while male judges will grant summary judgment approximately 70% of claims.  According to Eisenberg, although the difference in percentage in each cultural identity subset appears minimal—a mere 5%—even a slight difference bearing on the outcome of a case at the summary judgment stage of litigation is significant.  Such statistical evidence indicates that judges are just as likely as anyone else to be affected by their own cultural identities. 

           Understanding the theory of “naïve realism” can provide lawyers and law students with valuable insight into why a particular judge might have ruled a certain way or might rule a certain way in the future.  In employment discrimination cases, such insight can be game-changing.  When strategizing how to move forward in the litigation process, a plaintiff’s lawyer might alter his or her strategy if he or she believes that the judge, influenced by his or her cultural identity, is likely to grant summary judgment in favor of the employer.  For example, according to Eisenberg, if the plaintiff in an Equal Pay Act claim is a sports coach, a law enforcement officer, an insurance worker, or an accounting clerk, odds are the judge will grant the defendant’s summary judgment motion.   

            However, this also begs the question: Even if this theory could guide attorneys, is this behavior by judges proper or should it be something they actively seek to avoid?  For example, according to Professor McGinley, when judges rule that no reasonable jury could disagree with their decision, they appear dismissive and smug.  Additionally, they also might appear to be favoring or even prejudiced against certain cultural groups.  To that end, Professor McGinley refers to an article published in 2009, in which Yale Law School Professor Dan Kahan recommends that judges should avoid granting summary judgment when they can imagine that a significant subcommunity would disagree with the judge’s factual findings.  In his article, Kahan also suggests that judges are “uniquely equipped” to thwart the perception problem and can do so by exercising judicial humility.  Professor Kahan argues that this does not mean that a judge cannot make a decision that favors a particular cultural style; rather, the judge should attempt to legitimize the outcome of a case in a way that avoids the appearance of cultural bias by considering how a significant subcommunity would perceive the case.         

           “Naïve realism” sways cases of all kinds—civil and criminal alike.  It also affects judges in every level of the court system.  With this in mind, it’s crucial that lawyers take this theory into account when preparing for trial, and that judges work actively to combat the issue—especially in the summary judgment phase of employment discrimination cases.


*Leah Braukman is a J.D. candidate at New York Law School graduating in May of 2013.

1Professor Eisenberg compiled and analyzed five-hundred Equal Pay Act cases (published and unpublished) that involved the consideration of a summary judgment motion from January 1, 2000 to December 31, 2011.  Deborah Thompson Eisenberg, Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases, 57 N.Y.L. Sch. L. Rev. (forthcoming 2013).



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