Fakers and Floodgates

29 Pages Posted: 13 Dec 2014 Last revised: 10 Mar 2015

See all articles by Sandra Sperino

Sandra Sperino

University of Cincinnati College of Law

Suja A. Thomas

University of Illinois College of Law

Date Written: December 11, 2014

Abstract

There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.

Keywords: employment discrimination, retaliation, frivolous, floodgates, Nassar

JEL Classification: K10, K13

Suggested Citation

Sperino, Sandra and Thomas, Suja A., Fakers and Floodgates (December 11, 2014). Stanford Journal of Civil Rights and Civil Liberties, No. 10, 2014; U of Cincinnati Public Law Research Paper No. 15-02; University of Illinois College of Law Legal Studies Research Paper No. 15-10. Available at SSRN: https://ssrn.com/abstract=2537167

Sandra Sperino

University of Cincinnati College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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