Alito tends to favor defendants in discrimination suits

Until a few days ago, the nearly decade old case of Sheridan vs. E.I. DuPont de Nemours & Co. was hardly a household term. Now it is a weapon in the battle over whether federal Appeals Court Judge Samuel Alito will gain a seat on the Supreme Court.

It is one of several cases being cited by liberal groups as evidence he holds little sympathy for workers claiming they were discriminated against by employers because of their race, gender or age.

Alito's record on such cases is one reason critics contend that, rather than a responsible conservative judge who ought to be elevated to the nation's highest court, he is really out of the mainstream and should be rejected by the Senate.

Because Alito would replace Justice Sandra Day O'Connor, who has been the key swing vote on the court for years, his nomination is drawing especially close scrutiny. His fans and his opponents say he probably will move the court rightward. The question is how much.

In 1996, an overwhelming majority of the 3rd Circuit Court of Appeals, of which Alito is a member, awarded a significant victory to Barbara Sheridan, a worker at the Hotel du Pont in Wilmington, Del., who claimed she had been sexually harassed by a supervisor, denied a promotion because she was a woman and eventually fired for protesting the alleged discrimination.

A jury concluded that she was not entitled to the promotion but that her complaints had resulted in a hostile work environment, and awarded her approximately $30,000 in back pay. But the trial judge toppled the verdict, saying the evidence was inadequate to prove that gender was a critical factor in what happened to Sheridan.

The appeals court heard the case twice and both times ruled for Sheridan. In its final ruling, by a 10-1 vote, the 3rd Circuit ruled that a plaintiff did not have to show "direct" evidence of discrimination if a jury rejects an employer's explanation of its actions as a "pretext."

Alito was the lone dissenter. He contended that the majority had made it too difficult for an employer to win. The majority — eight of them Republican appointees — cited a Supreme Court decision that emphasized that, "There will seldom be 'eyewitness' testimony as to the employer's mental processes." Consequently, cases of this type usually turn on circumstances and inferences and a jury must be permitted to weigh the evidence and assess the company's intent, the majority concluded.

A senior official of the Justice Department, speaking on condition of anonymity, countered that the clash between Alito and the court majority in Sheridan was over a technical legal point on the burden of proof and that neither this case nor any other case should be cited as evidence that he was anti-plaintiff.

But the Alliance for Justice, another liberal advocacy group, said the ruling was one of several showing that Alito "has advanced a cramped reading of civil-rights laws, notably Title VII of the Civil Rights Act of 1964, which bars various forms of discrimination in employment."

Observers note that Alito's opinions are often narrow. And several legal scholars acknowledged that Alito had favored plaintiffs in some discrimination cases. But they said that in general, his approach in race- and gender-discrimination cases was unsympathetic to plaintiffs.

"This is a very, very conservative judge who in his dissenting opinions is overwhelmingly likely to be more conservative than the majority," said University of Chicago law professor Cass Sunstein.