Fakers and Floodgates

This symposium addresses barriers to Title VII claims. Until recently, scholars and litigants could only wonder whether Supreme Court decisions limiting discrimination law were driven by inherent judicial skepticism about the plaintiff's claims. If this skepticism existed, it remained important to the underlying doctrine, but hidden from view.

The Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar represents a watershed moment in employment discrimination litigation. The majority opinion posited that an employee might try to avoid termination by filing a fake retaliation claim against his employer. It also expressed fears about courts, administrative agencies, and employers being subjected to floodgates of litigation. It then explicitly used these concerns about fakers and floodgates to tip substantive discrimination law in an employer-friendly direction.