From the testimony yesterday:Biden says, "Sheer personal antipathy is okay even when the employer's reason for not hiring the person toward whom they showed sheer personal antipathy weren't true. How do you distinguish that from discrimination, subtle discrimination, sheer antipathy, subtle discrimination, that's a tough one for me, judge. How do you draw a difference?"
ALITO: It gets into a fairly technical question involving a Supreme Court case called the McDonnell Douglas case. But to put it in simple terms, courts of appeals have divided into three camps on this. There was the pretext-plus camp, which was the one that was the least hospitable to claims by employees. There was the pretext-only camp, which was the camp that was most favorable to employees, and there was the middle camp. And my position was in the middle camp, and when the issue went to the Supreme Court, and it did, a couple of years later, in Reeves vs. Sanderson Plumbing, Justice O'Connor wrote the opinion for the Supreme Court, and she agreed with my analysis of this legal issue, that in most instances, pretext is sufficient.
Even though Senator Biden puzzled til his puzzler was sore, Judge Alito answered deftly while the audience did snore.
