How Rhetoric Reveals Judicial Motives in Employment Discrimination Cases

Authors

Susan E. Provenzano

Document Type

Article

Abstract

Employment discrimination plaintiffs tend to lose on summary judgment. In these cases, judges are acting like juries and undermining anti-discrimination legislation while paying lip service to the law and the judicial role. How and why are courts doing this? Legal scholars blame bad doctrine and biased judging. But neither one tells the full story. The tell is in the opinions' strategic use of language, which shows how the court, as an institution, "sized up" the case and the motives of key actors the parties, the lawmakers, other courts, and the court itself. Conducting the first-ever rhetorical analysis of this problem, this Article reveals how these rhetorical innerworkings of judicial opinions can drive summary judgment in discrimination cases, forging pro-defendant and non-discrimination assumptions into law.

To illustrate, this Article conducts a rhetorical case study showing how a notorious en banc opinion maneuvered within doctrinal spaces, presented rhetorical choices as commands of law, and concocted a version of motives that closed out any possibility of discrimination. The opinion also laundered its own judicial action, using error-correcting and procedure-protecting rhetoric as a cover for an implicit assumption that employers do not discriminate. Viewing the rush to summary judgment through this new theoretical and interdisciplinary lens, the case study provides a deeper understanding of the problem and suggests defensive litigation strategies. By understanding how opinion language strategically constructs motives, advocates can devise counternarratives, making it harder for courts to fill in the blanks with pro-employer rhetorical choices.

Recommended Citation

Provenzano, Susan E. (2022) "How Rhetoric Reveals Judicial Motives in Employment Discrimination Cases," Tennessee Law Review: Vol. 90: Iss. 1, Article 6.
Available at: https://ir.law.utk.edu/tennesseelawreview/vol90/iss1/6

Publication Date

2022