Flying without a Statutory Basis: Why McDonnell-Douglas is Not Justified by Any Statutory Construction Methodology

38 Pages Posted: 31 Mar 2006  

Sandra Sperino

University of Cincinnati College of Law

Date Written: March 26, 2006

Abstract

The McDonnell-Douglas three-part burden-shifting framework has come under increasing attack in recent years. While policy arguments in favor of eliminating the standard are important, one of the strongest arguments in favor if its demise, is that the standard was adopted without proper regard to the operative text, the legislative history, and the broad policies of Title VII. This Article examines the McDonnell-Douglas framework through four leading models of statutory construction and concludes that a satisfactory statutory justification for the test is lacking. While it arguably may have been appropriate to justify this lapse in the past by claiming that the test was merely an evidentiary standard and could be created through the Supreme Court's supervisory authority without reference to normal principles of statutory construction, this argument is no longer compelling. In recent years, courts have begun to water down or eliminate McDonnell-Douglas' use as an evidentiary standard by juries, and, in the process, weakened the argument for its continued legitimacy.

Keywords: Employment, Title VII

Suggested Citation

Sperino, Sandra, Flying without a Statutory Basis: Why McDonnell-Douglas is Not Justified by Any Statutory Construction Methodology (March 26, 2006). Available at SSRN: https://ssrn.com/abstract=893605 or http://dx.doi.org/10.2139/ssrn.893605

Sandra Sperino (Contact Author)

University of Cincinnati College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States

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