Life After Gross: Creating a New Center for Disparate Treatment Proof Structures

AuthorMark R. Deethardt
PositionJ.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University
Pages187-224
Life After Gross: Creating a New Center for
Disparate Treatment Proof Structures
TABLE OF CONTENTS
Introduction ..........................................................................188
I. The Center and the Gyre of Disparate Treatment Proof
Structures… .........................................................................192
A. The Center ......................................................................193
B. The Gyre—The Spiraling Out of Control of
Disparate Treatment Proof Structures ............................197
II. The Aftermath of Gross and the Widening Gyre .................200
A. Serwatka v. Rockwell Automation, Inc.: Gross
and the ADA ..................................................................200
B. Smith v. Xerox: Gross and Title VII Retaliation ............201
III. Reeling in the Gyre: The Practical and Theoretical
Reasons for a New Center ....................................................203
A. Gross v. FBL Financial Services: A Woeful Decision ..203
1. Flaws in Gross’s Reasoning .....................................204
2. Flaws in the Practical Application of Gross ............207
B. The Scope and Effects of Serwatka and Smith ..............209
1. Serwatka: The Gyre Expands to Encompass
the ADA ...................................................................209
2. Smith: One Step Forward, Two Steps Back .............214
C. Gross Beyond the Context of Employment
Discrimination Law .......................................................216
D. The Theoretical and Practical Reasons for a Mixed-
Motives Framework .......................................................218
IV. The Protecting Older Workers Against Discrimination
Act: A New Center ...............................................................220
Conclusion ...........................................................................223
188 LOUISIANA LAW REVIEW [Vol. 72
Turning and Turning in the widening gyre
The Falcon cannot hear the falconer;
Things fall apart; the centre cannot hold1
INTRODUCTION
One commentator has called disparate treatment law
“fundamentally incoherent.”2 A better description is incoherent and
impractical. Consider a 55-year-old African-American employee
who is fired after filing a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging that he was denied a
promotion based on his race.3 This employee also has evidence that
the manager who fired him frequently made racist and ageist
comments. This individual has Title VII and Age Discrimination in
Employment Act (ADEA) disparate treatment claims and a Title VII
retaliation claim.4 Under the current state of employment
discrimination law, this employee would have to prove each claim
Copyright 2011, by MARK R. DEETHARDT.
1. W.B. YEATS, The Second Coming, in THE COLLECTED POEMS OF W.B.
YEATS 187 (Richard J. Finneran ed., 1996).
2. The two types of employment discrimination claims are disparate
treatment (intentional discrimination) and disparate impact (unintentional
discrimination). The two claims are distinguished as follows:
Broadly speaking, it may be said that there are two generic forms of
employer conduct actionable under Title VII. First, there are a variety of
forms of intentional discrimination, disparate treatment. . . . More
controversial is employer liability for neutral, that is facially
nondiscriminatory, work practices that have greater adverse statistical
impact on members of the plaintiff’s protected group . . . than on others.
HAROLD S. LEWIS, JR. & ELIZABETH J. NORMAN, EMPLOYMENT DISCR IMINATION
LAW AND PRACTICE 16465 (2nd ed. 2004); see also Martin J. Katz, The
Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate
Treatment Law, 94 GEO. L.J. 489 (2006).
3. T itle VII’s retaliation provision states that
[i]t shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment
. . . because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or hearing under this sub chapter.
42 U.S.C. § 2000e-3(a) (2006). The employee in this hypothetical is 55 because
an individual must be at least “40 years of age” to have a cognizable ADEA
disparate claim. 29 U.S.C. § 631 (2006).
4. See 42 U.S.C. § 2000e-5 (2006) (Title VII discrimination); 29 U.S.C. §
623 (2006 & Supp. II 2008) (ADEA disparate treatment); and 42 U.S.C. §
2000e-3 (2006) (Title VII retaliation).
2011] COMMENT 189
using a different proof structure.5 The results of these conflicting
evidentiary structures are that the employee may have difficulty
pleading and determining how to prove his claims,6 the judge may
have trouble evaluating the sufficiency of the evidence and
instructing the jury on each method of proof, and the jury may
misunderstand the instructions and reach erroneous conclusions.
Furthermore, the current system for proving employment
discrimination prevents the employee from recovering damages for
some claims even if the jury finds that the employer intentionally
discriminated.7 A system riddled with such impracticalities is ill-
suited for achieving the lofty goal of employment discrimination
law, which is to place all employees on an equal footing by deterring
discrimination and compensating its victims.8
How plaintiffs prove disparate treatment claims under Title VII,
the Americans with Disabilities Act (ADA), and the ADEA is one
of the most important concepts of employment discrimination law.9
The proof structures that the Supreme Court has developed to guide
disparate treatment plaintiffs dictate every phase of litigation and are
an integral part of the law’s overall scheme.10 These structures form
5. The term proof structure means the “paths for proving [employment]
discrimination set out by different Supreme Court opinions and statutes.” Martin
J. Katz, Gross Disunity, 114 PENN ST. L. REV. 857 n.1 (2010).
6. Since 2007, the Supreme Court has heightened the pleading
requirements under the Federal Rules of Civil Procedure by stating that a
complaint must allege enough factual matters to state a claim that is “plausible”
on its face. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007). Since the Court adopted these new
pleading standards, Title VII plaintiffs have had difficulty stating “plausible”
employment discrimination claims. See Joseph A. Seiner, The Trouble With
Twombly: A Proposed Pleading Standard for Employment Discrimination
Cases, U. ILL. L. REV. 1011 (2009) (analyzing distinct court dismissal rates of
employment discrimination claims in the year before and after Twombly and
finding that a greater percentage of cases were dismissed when courts cited the
new Supreme Court standards). When coupled with the various proof structures,
the heightened federal pleading requirements make asserting and proving
employment discrimination claims an arduous task.
7. See background infra Part III.A (discussing Serwatka).
8. See H.R. REP. NO. 10240, pt. 2, at 17 (1991). The first goal of Title VII
is to make whole the victims of discriminatory employment actions, and the
second goal is to deter future discriminatory acts.
9. The three major federal anti-discrimination employment statutes are
Title VII, 42 U.S.C. §§ 2000e2000e17 (2006), the ADA, 42 U.S.C. §§ 12111
12117 (2006), and the ADEA, 29 U.S.C. § 623 (2006 & Supp. II 2008).
10. William R. Corbett, Fixing Employment Discrimination Law, 62 SMU
L. REV. 81, 115 (2009) (“[The proof structures] are used to draft pleadings, to
conduct discovery, to move for summary judgment, to organize evidence for
presentation at trial, to move for judgment as a matter of law, and to craft jury
instructions.”).

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