Cross-Statute Employment Discrimination Claims and the Need for a "Super Statute"
47 Pages Posted: 5 Oct 2021
Date Written: October 5, 2021
Employment discrimination law is almost sixty years old in the United States. The law has developed under several different statutes enacted by Congress at different times. Congress has amended the statutes over the years, almost always in reaction to Supreme Court decisions with which it disagrees. The Supreme Court and the lower courts then interpret these piecemeal repairs of the law. This approach has produced a body of employment discrimination law in which there are significant asymmetries among the protected characteristics and the several statutes. These asymmetries produce both practical and theoretical problems, creating employment discrimination law that is cumbersome and almost inscrutable. These problems are particularly evident in cross-statute discrimination claims, such as race discrimination claims asserted under both Title VII and section 1981 and intersectional or hybrid discrimination claims that combine characteristics from different statutes. The problems created by asymmetrical law applied to cross-statute claims are exacerbated by, and demonstrated in, the recent decisions of the Supreme Court in Comcast Corp. v. National Association of African American-Owned Media, 140 S. Ct. 1009 (2020), and the Tenth Circuit in Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (2020). The asymmetrical standards of causation and remedies need to be addressed by Congress. Congress should repeal existing employment discrimination statutes and enact a single “super statute” that achieves a high degree of symmetry for the law applicable to the various protected characteristics.
Keywords: employment discrimination, causation, legislative reform, intersectional claims
JEL Classification: K31
Suggested Citation: Suggested Citation