More on Ortiz

In Ortiz v. Werner Enterprises, the Seventh Circuit addresses head on the frameworks used in that circuit for evaluating discrimination cases.  Because the frameworks vary slightly by circuit, I will set up the prevailing analysis in the Seventh Circuit prior to Ortiz.

The Seventh Circuit had developed a two-pronged analysis for individual disparate treatment cases.  Cases could proceed through a direct method of analysis or under an indirect method.  Courts often analyzed the facts of cases under both methods to determine whether a worker could survive summary judgment.

Unfortunately and unintentionally, this framing often caused judges to divide up the facts, what the late Professor Mike Zimmer called “slicing and dicing.” One way to slice and dice a case is to separate all of the so-called “direct evidence” from the indirect evidence.  A judge might evaluate all of the direct evidence and find it insufficient to pass the direct evidence test.  Likewise, the judge might evaluate all of the indirect evidence and also find that insufficient to pass the indirect evidence test.

The problem is that juries are not asked to evaluate cases in this manner.  Juries are asked to determine whether the facts as a whole demonstrate that race, sex, or another protected trait made a difference in an employment outcome. Once a judge (at summary judgment) separates the evidence into different buckets for purposes of funneling that evidence through the various tests, there is a tendency to forget to evaluate the evidence as a whole, as a jury would. This is the fundamental problem that Ortiz addresses: the failure to look at the evidence in its totality.



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s