TABLE OF CONTENTS INTRODUCTION I. DEFINING AND PROVING DISPARATE TREATMENT DISCRIMINATION A. Defining Disparate Treatment Discrimination B. Proving Individual Disparate Treatment Discrimination C. Proving Systemic Disparate Treatment Discrimination D. Summary II. THE UNHAPPY PAST AND UNCERTAIN FUTURE OF DISPARATE TREATMENT III. THE DISPARATE IMPACT ALTERNATIVE A. Brief Overview B. From Griggs to the 1991 Civil Rights Act C. The Present Statutory Requisites IV. THE CRITICS OF DISPARATE IMPACT V. REVIVING DISPARATE IMPACT CONCLUSION INTRODUCTION
The state of employment discrimination practice can be easily summarized: plaintiffs are losing almost all of the cases they file except for a few isolated ones, most notably sexual harassment claims. (1)
The state of employment discrimination scholarship can be easily summarized: discrimination is more pervasive than ever, but only when "discrimination" is defined in a way that few outside the legal academy are willing to accept. (2)
The state of employment discrimination doctrine can be easily summarized: formal proof structures for individual cases of disparate treatment are being dismantled in favor of a "sufficient evidence" test that will accord judges and juries, who believe discrimination is largely a thing of the past, as much freedom as under prior doctrine to find against plaintiffs. (3)
To be sure, some hyperbole exists in each of these statements, but each is largely true; indeed, with the exception of some unjustified optimism about Desert Palace, Inc. v. Costa (4) ameliorating the McDonnell Douglas proof structures for individual disparate treatment cases, (5) each statement is largely undisputed. Certainly, plaintiffs are increasingly unsuccessful in court, (6) and recent scholarship argues that current approaches inadequately deal with the discrimination phenomenon. (7)
This Article's thesis is straightforward: the obsession of the legal academy and the plaintiffs' bar with disparate treatment cases, to the wholesale exclusion of the disparate impact alternative, is largely responsible for the present crisis in the field. (8) Disparate impact has its own problems, some severe, and this Article is not the first to call for the theory's revival. (9) But the disparate treatment paradigm's profoundly unsatisfactory history should prompt a reconsideration of how much effort should be spent trying to salvage it. Indeed, Desert Palace's chief danger is that it will revive interest in a failed paradigm. Rather than leading us out of the waste and into the promised land, Desert Palace may prove to be yet another mirage.
This Article proceeds as follows: Part I sketches an overview of disparate treatment, the dominant approach to discrimination under Title VII of the Civil Rights Act. (10) With this structure in place, Part II then critiques the disparate treatment theory; in the process, Part II analyzes some of the major efforts to redefine the theory to make it more effective. Part III then reviews the admittedly checkered history of the disparate impact theory and Part IV details the criticisms leveled against the theory. Finally, Part V projects what might be a more hopeful future for disparate impact.
DEFINING AND PROVING DISPARATE TREATMENT DISCRIMINATION
One of the antidiscrimination project's pervasive problems has been the continuing conflation of two separate tasks, that is, defining discrimination and proving its existence. These tasks are obviously intimately interrelated, but they are not identical. Needless to say, discrimination must be defined prior to any effort to prove its operation in given case.
Defining Disparate Treatment Discrimination
Because Title VII bars "discrimination" based on race, sex, national origin, and religion, (11) the proscription's reach depends on what "discriminate" means. Early in its history, the Supreme Court adopted two definitions of the term. The first definition, disparate impact, was announced in Griggs v. Duke Power Co. (12) and required neither proof of motive nor intent on the employer's behalf. (13) Ironically, the second theory the Court recognized, disparate treatment, has come to dominate the cases and commentary.
As the Supreme Court described it in International Brotherhood of Teamsters v. United States, (14)
"Disparate treatment" ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. (15)
Although this formulation is framed in terms of discriminatory "motive," the Court soon began speaking of discriminatory "intent." It has continued to use both terms as though they are interchangeable, although intent appears to be the preferred usage, except when "mixed motives" are concerned. (16) Whether the Court intends them to be synonymous is unclear. (17) To the extent a difference exists, "motive" is broader than "intent" because motives can include unconscious forces, (18) while intent is more often used to describe an actor's conscious choices. (19) The Supreme Court's failure to define what either term means, or, indeed to explain whether they are synonymous, is all the more surprising given the scholarly commentary, which uniformly argues that motive is the more appropriate term, in part because it may include less conscious impulses. (20)
The motive-intent question suggests that this "most easily understood type of discrimination" (21) is not straightforward at all but rather requires clarification. The Court soon established that certain motivations, such as animus or disdain, were not essential to a violation: although sufficient, proof of such motives was not necessary for discrimination under Title VII because an employer discriminates within that statute's meaning if the employer intends to draw a distinction on prohibited grounds. Consequently, even admittedly rational, business-oriented judgments are discriminatory within the statute's meaning if the employer uses the race or gender criterion to make distinctions. Perhaps the most dramatic examples are the statute's condemnations of sex distinctions in fetal protection policies (22) and employer pension plans, (23) even if the distinctions were premised on what the Court views as real differences between the sexes.
This description, however, may suggest that the state of mind necessary for "discrimination" is really "intent" in the sense of conscious decision making, that is, a choice by a rational actor to use an individual's race or gender as a basis for allocating employment benefits or burdens. The "discrimination" Title VII addressed when first enacted often consisted of formal policies akin to those manifested in school segregation laws or at least conscious relegation of African Americans to inferior positions in employment hierarchies. In Griggs, for example, Duke Power had an explicit policy, which it discontinued the day the 1964 Civil Rights Act became effective, segregating blacks in the lowest paid, most menial positions in the plant. (24) Similarly, women were also often explicitly treated differently than men. (25) Although Congress undoubtedly anticipated that the impulses that led to these policies would be manifested in more ad hoc employment decisions, this kind of conscious decision making was the primary evil the statute addressed. (26)
In 1964, Congress recognized that discrimination is not always a conscious choice, (27) however, and the psychological impulses causing individuals to differentiate based on race have become far better understood in the forty years since the passage of Title VII. Relatively early in the statute's history, the notion of stereotyping was recognized, that is, the tendency to treat members of a class as having the perceived characteristics of a class. Stereotyping can be rational or irrational depending on the stereotype's accuracy in terms of actual group characteristics, (28) although even rational stereotyping is legally and morally problematic because it treats employees as members of a group rather than assessing their individual characteristics. Stereotyping can also be more or less conscious. Some stereotypes--women with preschool age children have worse attendance records than other workers because of their responsibilities, for instance--have been the basis of formal policies clearly driven by intent, however defined. (29) The salient scholarly development during the last decade, however, has been exploring the extent to which such stereotyping operates below the conscious level. Although the phenomenon has been studied since at least the 1970s, (30) recent research has revealed both how deep-rooted in cognitive structures attitudes regarding race and gender are and how sweepingly such influences can operate. Scholars, such as Linda Krieger, (31) Tristin Green, (32) Susan Sturm, (33) and others, (34) argue that discrimination in the new millennium is both more pervasive and less conscious than the aversion Title VII originally targeted in 1964. (35) This insight, though labeled differently, (36) has been generally accepted as playing a major role in present-day America, (37) although a serious question remains about the extent to which "old-fashioned" animus continues to operate. (38)
Whether these developments, which occurred long after Title VII was passed, will influence the interpretation of what it means to "discriminate" under the statute is unclear. When the Teamsters Court wrote about a "discriminatory motive" being necessary for disparate treatment discrimination, (39) it probably meant conscious impulses of the actor. Nevertheless, the Court could easily bring unconscious discrimination within the disparate treatment model by looking to its own cases, (40) stressing the word "motive," and...