Disparate Treatment as a Theory of Discrimination: The Need for a Restatement Not a Revolution

62 Pages Posted: 15 Aug 2006

See all articles by Steven J. Kaminshine

Steven J. Kaminshine

Georgia State University College of Law; Georgia State University


Disparate treatment, a seemingly straightforward basis for identifying discrimination and establishing liability under federal antidiscrimination laws, has become mired in controversy and debate. The debate, triggered by the Supreme Court's 2003 decision in Desert Palace v. Costa, has seen several prominent scholars argue that the case has revolutionary implications, and warrants an overhaul of thirty years of disparate treatment jurisprudence and the methodologies courts employ in assessing proof of discrimination. This article takes a contrary position, rejecting the rush to discard these methods of proof, while seeking to recast them on a sounder conceptual basis. The article accomplishes this by proposing a template of proof patterns that provide a more rational and reliable way of identifying and distinguishing the traditional proof schemes in disparate treatment cases and by offering a restatement of principles to serve as a guide for assessing disparate treatment cases in the post-Desert Palace era.

The outcome of this disparate treatment debate will have significant implications for the enforcement of federal anti-discrimination laws. Methods of proof directly affect the outcome of cases. Critics who call for an overhaul of today's methods see in their proposals a single open-ended standard that will work for the benefit of plaintiffs and enhance their chances of surviving legal challenges to their proof. This article contends that this assumption is flawed, that discrimination plaintiffs are generally hurt not helped by broad schemes that afford judges wide discretion under general standards. The article's proposals should benefit both plaintiffs and defendants by providing a rational and more reliable framework and set of principles for assessing proof of disparate treatment claims.

Keywords: Discrimination, employment, disparate treatment, methods of proof

JEL Classification: J70, J71, J79, J79

Suggested Citation

Kaminshine, Steven J., Disparate Treatment as a Theory of Discrimination: The Need for a Restatement Not a Revolution. Stanford Journal of Civil Rights and Civil Liberties, Vol. 2, p. 1, 2005, Available at SSRN: https://ssrn.com/abstract=924241

Steven J. Kaminshine (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States
404-651-2035 (Phone)

HOME PAGE: http://law.gsu.edu/directory/view.php?id=7

Georgia State University ( email )

35 Broad Street
Atlanta, GA 30303-3083
United States

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