Crimes of the Mind

The Supreme Court ruled unanimously today "that circumstantial evidence can be used in lawsuits accusing companies of discrimination, a decision that will make those cases easier to prove." In cases where multiple factors, gender among them, appear to have been in play in the firing of an employee, it's enough for the employee to adduce evidence that gender played a "substantial" role in the decision. It's then up to the employer to prove that the person would have still been fired absent gender considerations. The slip opinion is available here.

Legally speaking, the ruling certainly seems sound enough: it's not all that often that you can get all nine of these folks to agree on something. But the burden employers are supposed to meet here is hard to decipher. How is a firm supposed to prove what it would have done in some counterfactual situation? Sure, you can see what was done in other, similar cases. But no two employees are ever exactly the same, and there's always an irreducibly subjective character to employment decisions. Will we see companies begin to hire statisticians to isolate decisive variables in HR calls?