Date01 June 2022
AuthorCorbett, William R.

INTRODUCTION I. ASYMMETRY SIX DECADES IN THE MAKING A. Asymmetry Regarding Remedies B. Asymmetry Regarding Causation Standards C. Should Asymmetry Be a Cause for Concern? II. PROBLEMS IN CROSS-STATUTE CLAIMS CREATED BY ASYMMETRICAL EMPLOYMENT DISCRIMINATION LAW A. Comcast and Title VH/Section 1981 Claims 1. The Comcast Decision 2. Asymmetry Created by Comcast Complicates Cross-Statute Claims Under Title VII and Section 1981 B. The Frappied Decision and Intersectional Discrimination Claims 1. The Frappied Decision 2. Asymmetry Across Statutes Creates Problems for Intersectional Discrimination Claims III. IT IS TIME FOR A SUPER STATUTE CONCLUSION Congress has not drafted one statute to govern all claims of employment discrimination, regardless of whether those claims are based upon any of the protected classifications of race, sex, religion, national origin, age, and disability. The factors which Plaintiff seeks to lump together in this lawsuit under the title of "age-plus " theories of discrimination are contained within four separate and distinct statutes: the Age Discrimination in Employment Act, Title VII, the Americans with Disabilities Act, and the Rehabilitation Act. (1)

[T]here is no super-statute to handle every protected classification even though Congress could have so amended Title VII if that was its intention. (2)


Imagine how an employment discrimination case would be tried and decided in which a plaintiff sued under the federal employment discrimination statutes asserting a claim on the intersectional basis of national origin/age/disability. The plaintiff may claim, for example, that his employer discriminated against him by regarding him as a "crazy, old Russian." (3) The plaintiff would assert the claim under three separate statutes: Title VII of the Civil Rights Act of 1964 (Title VII) (4); the Age Discrimination in Employment Act of 1967 (ADEA) (5); and the Americans with Disabilities Act of 1990 (ADA). (6) Courts often characterize as "plus claims" those claims in which the alleged basis for discrimination is a covered characteristic and an uncovered characteristic, such as sex-plus-family-responsibility, or two covered characteristics, such as sex-plus-age. (7) The asymmetries of federal employment discrimination law, with several separate discrimination statutes covering different characteristics and applying different legal principles, create theoretical and practical conundrums. These problems are particularly evident and vexatious in discrimination claims that cross over statutes.

So, what is the standard of causation applicable to a cross-statute claim? (8) This is not simply an interesting theoretical question. Knowing the applicable standard of causation is crucial to a court's deciding of dispositive motions, such as failure to state a claim upon which relief can be granted, summary judgment, and judgment as a matter of law. (9) Discerning the appropriate causation standard may also be essential to drafting jury instructions. (10) Another crucial issue is determining the types of remedies available to a plaintiff who prevails on such a cross-statute claim. (11) For example, in the hypothetical above, the remedies available for national origin discrimination under Title VII and disability discrimination under the ADA differ from the remedies available for age discrimination under the ADEA. Thus, if the claim is characterized as a national origin-plus claim under Title VII or a disability-plus claim under the ADA, the plaintiff may recover one set of remedies. On the other hand, if it is deemed an age-plus claim under the ADEA, the plaintiff may recover a different set of remedies.

Turning to a more common scenario, suppose a plaintiff sues for race discrimination under both Title VII and section 1981 of the Civil Rights Act of 1866 (section 1981). (12) Most plaintiffs who sue for race discrimination sue under both statutes. (13) The assertion of claims under those two statutes posed no significant problems until the Supreme Court recently declared that the statutes have different standards of causation. (14) Now, a plaintiff suing for race discrimination must prove such discrimination was a motivating factor of the adverse employment action to recover under Title VII and a but--for cause to recover under section 1981.

The federal employment discrimination law of the United States presents several salient problems because it is principally composed of four separate statutes, (15) and Congress and the Supreme Court have developed asymmetrical law in and under the statutes. Two recent court decisions highlight the difficulties posed by having asymmetrical employment discrimination law when it is applied to cross-statute discrimination claims. In Comcast Corp. v. National Association of African American-Owned Media, (16) the United States Supreme Court held that but-for causation is the standard of causation applicable to section 1981. (17) In Frappied v. Affinity Gaming Black Hawk, L.L.C., (18) the Tenth Circuit became the first federal appellate court to hold that a cross-statute discrimination claim (in this case, sex-plus-age) is cognizable under Title VII. (19) The situations posed by the two decisions are different because Frappied dealt with an intersectional or hybrid discrimination claim that combined covered characteristics (sex and age), while Comcast dealt with a race discrimination claim, which can be asserted under section 1981 and/or Title VII. (20) However, the decisions share common ground in highlighting problems that arise in cross-statute employment discrimination claims due to the different law applicable to each statute.

In this Article, I assess the problems in cross-statute employment discrimination claims that are a product of the asymmetry of the federal employment discrimination law. I have addressed in prior work the problem of differing standards of causation and proof frameworks. (21) However, the cross-statute claims in Comcast and Frappied demonstrate the theoretical incoherence and practical problems spawned when claims are based on different statutes that have different causation standards, remedies, and other provisions. Changes are essential to enable lawyers to litigate and judges and juries to resolve employment discrimination cases. Moreover, the general public needs to have some understanding of the law and a belief that it is fair. (22)

Effective and appropriate resolution of these problems likely outstrips the Supreme Court's ability and will. Thus, it is incumbent on Congress to solve these problems. However, Congress's approach in the past, amending the separate employment discrimination statutes to achieve as much uniformity as policy choices permit, is not a good approach. There is a danger that such an approach produces uncertainty regarding congressional intent and preserves old (or produces new) asymmetry. The Civil Rights Act of 1991, (23) which was Congress's most substantial overhaul of the employment discrimination statutes, produced considerable asymmetry as the Supreme Court interpreted it. (24) The better approach would be for Congress to repeal the various laws and replace them with a consolidated employment discrimination law (25)--what one court termed a "super statute." (26) That single statute should achieve uniformity on most issues across protected characteristics; however, complete uniformity is not essential in a consolidated statute. Should Congress wish to make distinctions among some characteristics on some issues, Congress could specify such issues and make its intent clear in the single statute. The government of the United Kingdom engaged in such a project in enacting the Equality Act of 2010. (27) Ironically, at almost sixty years into the initiative by Congress and the courts to eradicate employment discrimination, the United States, whose laws established the model for the UK's employment discrimination laws, (28) has not taken such a step. Consolidating the various statutes into one is not easy work, and the process will be fraught with controversy. Nonetheless, the time is long past due for the former world leader in employment discrimination law to update its law and create a coherent super-statute within an overall plan.

Part II of this Article examines the asymmetry that has developed in federal employment discrimination law in the enactment and interpretation of several separate statutes. Part III considers significant practical problems created by the asymmetry. Part IV proposes a solution--the creation of a more symmetrical law by the enactment of a single consolidated employment discrimination statute.


    The occurrence or phenomenon of discrimination is a complex matter. (29) Illegal employment discrimination involves treating one employee differently than others based on a characteristic that the law protects. (30) Unsurprisingly, crafting law to address employment discrimination is very challenging. (31) As many commentators have explained, the law developed in the United States over almost six decades to address invidious employment discrimination fits poorly with the way discrimination actually occurs in the workplace. (32)

    Congress embarked on the mission of enacting laws to redress employment discrimination with the passage of Title VII of the Civil Rights Act of 1964. (33) In the ensuing years, Congress covered additional characteristics with the passage of the ADEA in 1967, (34) the ADA in 1990, (35) and the Genetic Information Nondiscrimination Act of 2008. (36) Congress also has amended the employment discrimination laws many times in an effort to keep pace with the doctrinal developments by the Supreme Court. (37) The Supreme Court and lower federal courts, for their part, have developed an elaborate structure for proving employment discrimination based on two general theories of discrimination and the associated proof frameworks...

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