In the recent case of Veasey v. Abbott, No. 14-41127 (5th Cir. 7/20/2016), a rare en banc panel struck down Texas’ strict voter identification law. En banc is a rare procedure. It means the entire court hears a re-hearing of a prior case. The plaintiffs lost a previous hearing which was heard by a smaller three judge panel. So, they asked for an en banc hearing. Parties typically ask for an en banc hearing when they think the smaller three judge panel based its decision on principles or caselaw that would not appeal to the wider, 15 judge court. The plaintiffs were successful. By a 9-6 vote the entire Fifth Circuit struck down the voter voter identification statute. The en banc panel found there appeared to be evidence of discrimination. That is not good for the state, because that means the lower court will look further into the possibility that intentional discrimination played a role in the decision to impose the very strict voter ID requirements. En banc requests are almost always turned down. No doubt, because this is a such a high profile matter, the Fifth Circuit allowed it, this time.
For employment discrimination cases, the Veasey decision reminds us of some basic tenets of discrimination law. As the court noted, direct evidence of discrimination is not required to show discrimination. As the en banc court noted, in this day, legislators (and employers) rarely announce an intent to discriminate. Veasey, p. 21. To require direct evidence would give free rein to legislators (and employers) who can cloud their actions in seemingly neutral language. Pointing to employment law, the court noted the circumstantial method of proof first enunciated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). As the Supreme Court recently noted in Foster v. Chatman, 136 S.Ct. 1737, 1751-52, 1754-55 (2016), people hide discriminatory intent behind seemingly legitimate reasons. If Jane were fired from an at-will job for being late once, we might conclude that the firing was legitimate. But, if we then learned that Joe, who had the very same job as Jane, was late numerous times with no penalty, then we would doubt the given reason was valid. Veasey at 22. Context matters, concluded the Veasey court. Indeed, it does.
The Fifth Circuit remanded the case back down to the lower court regarding among various issues whether the discrimination was intentional. See the opinion here.