TRUMP’S "STRAY REMARKS" HAVE DOOMED HIS IMMIGRATION EXECUTIVE ORDERS

What do the court decisions on the Trump Administration’s executive orders banning entry by certain immigrants have to do with discrimination law?  It turns out the answer is "a lot."  The main objections to Trump’s executive order is that his words as a presidential candidate were used to show that the travel ban may be an unconstitutional religious test for entry into the U.S.  Among other things, in a press release it was announced he was "calling for a total and complete shutdown of Muslims entering the United States."  As a result of various court injunctions, the President attempted to issue a second executive order explaining that his first order was not a "Muslim ban," but was intended to apply to territories and to protect the nation from foreign terrorist entry into the U.S.  Although the new executive order did not refer to any religion, the plaintiffs in various litigation are arguing that it nevertheless was religiously motivated. 

The main issue in most employment discrimination cases is whether there was a discriminatory motive for the employer’s conduct in adversely affecting a plaintiff or group of plaintiffs.  Sometimes the employer seems to have a valid reason for the matter, such as a termination, but remarks are made by certain supervisors indicating a discriminatory motive.  For example, if a decision maker in a layoff should be quoted as saying, "That old fart should have retired." such a statement by a decision maker is treated almost like an admission of guilt, as evidence of age bias.  On the other hand, statements by supervisors outside of the decision-making process are often to considered to be "stray remarks," not sufficient to show discriminatory bias on the part of the decision-maker. 

In any event, these immigration cases show how decision makers’ casual remarks are often taken seriously by courts.