Unifying Disparate Treatment (Really)

Abstract

Currently, there are three different frameworks for litigating disparate treatment cases: one prescribed by the Civil Rights Act of 1991, one prescribed by Price Waterhouse v. Hopkins, and one prescribed by McDonnell Douglas v. Green. Each provides a different causation requirement and burden of proof. The fact that the Supreme Court and Congress have failed to delineate when which framework applies has caused multiple circuit splits and vast amounts of costly litigation. But there is an even more significant cost: Two of the three frameworks (Price Waterhouse and McDonnell Douglas) have significant normative flaws. This Essay articulates those flaws. It then provides a way out of this morass: a way in which the lower courts can stop using the two flawed frameworks and truly unify disparate treatment law under the 1991 Act framework