The Proxy Problem in Disparate Treatment

Abstract

The textbook view is that defendants are immune from disparate treatment liability when they injure plaintiffs for non-discriminatory reasons. This Article is about a contested and growing class of disparate treatment disputes that challenge that textbook picture. In proxy cases, defendants non-pretextually target plaintiffs for possessing statuses that are facially unprotected from disparate treatment, but tightly linked to characteristics that do receive disparate treatment protections. Proxy plaintiffs cannot show that they were injured "because of," or "on the basis of," their protected traits under accepted disparate treatment causation standards. Yet they press compelling disparate treatment claims that challenge conventional views about how disparate treatment does and should operate.

This Article attempts the first systematic analysis of proxy discrimination, which it explores with reference to a diverse set of federal civil rights statutes including Title VII, the ADEA, and the ADA, among others. It provides a precise formulation of the proxy problem, taxonomizes existing proxy case law, and proposes a framework for adjudicating proxy cases as they continue to challenge courts in unpredictable ways.

In doing so, the Article makes three central arguments. First, and as a doctrinal matter, it shows that proxy cases challenge putatively black-letter accounts of discriminatory intent. Notwithstanding the indirect, "unintentional" character of proxy discrimination claims, the modal court views proxy discrimination as a cognizable theory of disparate treatment liability. Second, and normatively, it argues that courts properly decline to find for proxy plaintiffs as a rule even as they accept many proxy discrimination claims: courts correctly permit proxy targeting when defendants possess substantively compelling reasons to undertake proxy classifications. Third, and at the level of theory, this Article shows that proxy discrimination effectively blurs the boundaries between disparate treatment, on the one hand, and disparate impact, on the other. Proxy discrimination is best modeled as a hybrid discrimination category that mixes disparate treatment remedies with disparate impact defenses-defying the sharp bifurcation between the disparate treatment and disparate impact that pervades American civil rights law and scholarship.

Keywords: law, legal theory, anti-discrimination, civil rights, disparate treatment, causation