The Emerging Uniform Structure of Disparate Treatment Discrimination Litigation

Abstract

This article postulates that the Civil Rights Act of 1991 (the "Act"), along with some recent Supreme Court decisions, may have begun the development of a new, uniform structure for disparate treatment discrimination which will eliminate much of the complexity and confusion presently existing. To test this thesis, Part I of the Article traces the approach the Supreme Court has historically taken. Part II then describes the emerging uniform model of disparate treatment discrimination, with reference to the Act, two 1993 Supreme Court decisions, and several lower court decisions. Part III addresses the scope of the emerging model, and considers its applicability to all Title VII disparate treatment cases. Part IV fleshes out how the model might operate. Finally Part V addresses the application of this uniform structure to other antidiscrimination statues, such as the ADEA and 42 U.S.C. section 1981.

Keywords: Employment discrimination, disparate treatment, individual disparate treatment discrimination

JEL Classification: J7, J71