The Allure and Danger of Practicing Law as Taxonomy

Abstract

In this article, I hope to contribute to the ongoing debate on how our society treats the problem of discrimination. Many scholars have criticized the types of antidiscrimination statutes we have enacted as well as the ways in which the courts have interpreted those laws. While I agree with many of these critiques, rather than tackle those very large issues at the outset, I focus on the test the courts currently use to evaluate the evidence to determine whether an inference can be made that discrimination has occurred. I argue that lawyers and courts have become so caught up in this evidentiary test that the test has redefined what discrimination is. The new definition bears little relation to the statutory language of the antidiscrimination laws or to the ways in which discrimination operates in our society. Therefore, I argue, we should discard it in favor of a vastly more simple test that asks at summary judgment simply whether a rational factfinder would be required to find that the challenged employment decision was taken only for reasons unrelated to discrimination or discriminatory beliefs.

I draw on civil rights history to trace the development of our legal approach, psychological research on cognitive bias to discuss how we discriminate, and traditional legal analysis to demonstrate how far afield we have gotten from the original principles. I hope that my analysis will contribute to a more straightforward approach to evaluating evidence in discrimination cases, which will make it easier for both plaintiffs and defendants to present their cases. Additionally, it will offer the parties an opportunity to present evidence and to argue about how discrimination should be defined. This opportunity would allow judges and members of the public to better understand the complex ways in which discrimination continues to operate in our society. It will also promote debate on a subject that has remained hidden because the evidentiary test does not address it. As long as that issue remains hidden in discrimination cases, judges and juries can employ their own definitions, which will forever escape public scrutiny.

Keywords: Discrimination, employment, summary judgment, burden shifting, evidence, McDonnell Douglas, taxonomy

JEL Classification: J7, K31, K41