Pragmatism over Politics: Recent Trends in Lower Court Employment Discrimination Jurisprudence

Many scholars have argued that the judiciary's decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the federal bench has become more ideologically conservative in recent years. This Article seeks to dispute that hypothesis as incomplete at best, and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit's employment discrimination jurisprudence is correlated with two factors, total workload per capita judge and employment discrimination filings per capita judge. After considering empirical evidence, the Article first concludes that judges' political ideology plays only a limited role in their decision making, and shows that Democratic and Republican appointees agree much more often than they disagree with respect to employment discrimination claims. The Article then identifies two factors that appear to be correlated with how receptive a given circuit is towards claims of employment discrimination: Overall workload and the number of employment filings. Through empirical research, the Article demonstrates that there are vast differences between the circuits in terms of both of these factors. Finally, the Article compares the various analytical approaches that the circuits have taken to resolve certain issues that commonly arise in employment discrimination cases. The Article concludes by showing that a circuit's interpretation of relevant statutory and procedural provisions is correlated with its workload and the number of employment filings it handles, and demonstrates that, on balance, judges in circuits that have heavier workloads and greater numbers of employment discrimination filings have interpreted substantive law and procedural rules in a manner less receptive to employment discrimination claimants than have their counterparts in circuits with lower workloads and fewer employment discrimination filings.