Nassar expresses three ideas about employees and their claims. First, the sheer volume of cases is enough to favor a more onerous causal standard. Second, enough employees will bring false claims that substantive retaliation doctrine needs to protect courts, administrative agencies, and employers from fakers. Third, existing procedural mechanisms are not adequate to ferret out these false claims. Rather, they must be dealt with by altering the substantive law.

This Article responds to the alleged fakers and floodgates problem. First, it argues that the Court has created reasons to alter the law that are not grounded in congressional intent. Title VII contains numerous provisions that limit the reach of the statute. Beyond these restrictions, Congress never expressed any intention to limit the number of claims heard by the Equal Employment Opportunity Commission (EEOC) or the courts based on concerns about the sheer volume of such claims. Nor did Congress express any intent that the courts use the substantive law to screen for false retaliation cases. Through various provisions in Title VII, Congress established a statute designed to protect employers, employees, and courts. Multiple provisions establish a mechanism to ensure that employees are able to bring claims, that employers can adequately defend against claims, and that courts do not hear claims that can be resolved by the EEOC. Moreover, Title VII was enacted in the presence of several existing devices that can be employed to stem any false claims and any related floodgates of litigation. These devices allow judges to sanction parties who file false claims and to dismiss these cases. While the Supreme Court considers these devices to be adequate to handle the misbehavior of employers, in Nassar the Court rejected the possibility that procedural mechanisms are sufficient to deal with false claims filed by employees.

Second, although we argue that the Court’s fakers and floodgates arguments are improper, they are also problematic because they are not supported by empirical or other evidence. To the contrary, available evidence shows that the number of employment-related civil rights claims is decreasing both in raw numbers and in proportion to the number of civil claims filed in federal court.”  This Article questions whether the judiciary generally, and the Supreme Court in particular, is the best institution to make factual claims about fakers and floodgates.

Third, this Article also challenges the accuracy of the Court’s assertion that changing the substantive law will reduce the number of spurious claims. At best, such a change is a blunt instrument for handling frivolous claims. Most importantly, changing the law represents a choice about what counts as legal retaliation and what does not. By requiring plaintiffs to establish but for cause, the Supreme Court has declared that an employer does not retaliate against an employee (in a legal sense) if the causal connection is less strong. In other words, if an employee can show only that retaliatory motive was a motivating factor in her termination, she has not suffered retaliation under Title VII. 

Fourth, we discuss the dangers of the floodgates and fakers arguments becoming explicitly embedded in judicial doctrine. Such a default position distracts from the larger congressional goal of preventing retaliation and confuses the underlying legal doctrine. Thus far, two courts have already cited the Court’s concerns in their opinions. This Article calls for the EEOC and other organizations concerned with employment discrimination to develop a factual response to arguments about fakers and floodgates before these myths develop into an uncontestable judicial narrative that courts can use to justify other changes in the law.

Finally, we argue that the fakers and floodgates arguments are consistent with a broader problem-courts’ infusion of their own views of evidence of discrimination into procedure and substance. Courts use these devices to prevent juries from hearing factually intensive civil rights cases, even when a plaintiff presents evidence of a colorable claim. (emphasis added)

Smh…

Source: Sandra F. Sperino and Suja A. Thomas. Fakers and Floodgates. Stanford Journal of Civil Rights & Civil Liberties. pg. 223-225. June 2014.