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The Impossibility of Agnostic Discrimination Law


Deborah M. Weiss


Northwestern University School of Law; University of Texas at Austin - Red McCombs School of Business

July 20, 2011

2011 Utah L. Rev. 1677

Abstract:     
In recent years, some discrimination plaintiffs have introduced pure social framework evidence that discrimination remains common in American society and applied social framework evidence that discrimination is likely to occur in circumstances like those found in the defendant firm. Pure social framework evidence seems irrelevant to problems of proof, which apparently raise a narrow factual question: did a particular employer treat particular employees differently because of membership in a protected group?

In the much anticipated Wal-Mart v. Dukes, the Supreme Court indicated that applied social framework analysis of discrimination within the defendant firm was to be held to a rigorous standard. At the same time, the opinion’s analysis of proof problems relied heavily on an unsupported claim, or background assumption, about the societal pattern of discrimination. In this Article I argue that either the background assumption had no place in the opinion or that the assumption should be opened to debate though pure social framework evidence. The elimination of background assumptions, I argue, is not an option. Whenever the factual occurrence of differential treatment is at issue, triers of fact must make background assumptions about the societal pattern of discrimination. On the other hand, considerations of both consistency and judicial economy suggest the undesirability of turning each and every discrimination trial into a forum for examining the pattern of discrimination in the United States today. To avoid this problem I propose an agenda for incorporating social frameworks into discrimination doctrine.

Number of Pages in PDF File: 72

Keywords: employment discrimination, social framework analysis, evidence, experts

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Date posted: September 20, 2010 ; Last revised: September 17, 2012

Suggested Citation

Weiss, Deborah M., The Impossibility of Agnostic Discrimination Law (July 20, 2011). 2011 Utah L. Rev. 1677. Available at SSRN: http://ssrn.com/abstract=1679522

Contact Information

Deborah M. Weiss (Contact Author)
Northwestern University School of Law ( email )
600 North Lake Shore Drive
Unit 1505
Chicago, IL 60601
United States
University of Texas at Austin - Red McCombs School of Business ( email )
Austin, TX 78712
United States
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