Rethinking Discrimination Law

Abstract

In the 1970s, federal courts began identifying categories of discrimination, such as disparate impact, disparate treatment and harassment. They then created elaborate, multi-part rubrics tied to each category. Modern employment discrimination law is defined by these frameworks. They serve as gatekeepers that control the substantive discrimination narratives juries hear and also structure the ways that judges and litigants think about discrimination.

Legal scholarship is replete with excellent articles challenging specific frameworks courts use to evaluate discrimination claims. This Article does not challenge any particular framework. Instead it challenges whether courts should even use frameworks to conceptualize discrimination in the first place. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims.

The Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit the courts’ methodology so that the structure and its effects can be examined. Second, it demonstrates how the frameworks tend to squeeze out claims that are arguably cognizable under the federal discrimination statutes’ broad operative language. The Article’s final contribution is to propose a simpler model for thinking about employment discrimination law. It argues for a return to first principles that requires the courts to specifically define key statutory language.

Keywords: Title VII, ADEA, ADA, Statutory Interpretation, Statutory Construction, Frameworks, Proof Structures

JEL Classification: K31, K39