Shortcuts in Employment Discrimination Law
60 Pages Posted: 16 Mar 2012
Date Written: 2011
Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination legislation. This article contrasts the shortcuts trend in employment discrimination jurisprudence with those presumptions and inferences that have traditionally been afforded to plaintiffs suing under traditional tort law. It also explores the potential root causes of the skepticism and hostility with which judges have regarded employment discrimination plaintiffs, as opposed to the way in which they have regarded traditional tort plaintiffs.
Keywords: Employment, discrimination, Stray comment doctrine, strict temporal nexus requirement, tort law, same actor inference, Title VII, Civil Rights Act of 1964, Age Discrimination and Employment Act of 1967, ADEA, shortcuts, stray comment, stray remark doctrine, Res Ipsa Loquitor, defamation per se
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