Rethinking discrimination law.

• Author: Sperino, Sandra F.

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims.

This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be examined. Second, it demonstrates how the frameworks tend to squeeze out claims that are arguably cognizable under the federal discrimination statutes' broad operative language. This Article's final contribution is to propose a simpler model for thinking about employment discrimination law. It argues for a return to first principles that would require courts to specifically define key statutory language.

TABLE OF CONTENTS INTRODUCTION I. THE DEVELOPMENT OF THE DISCRIMINATION FRAMEWORKS A. The Legal History of the Discrimination Frameworks B. A History of the Workplace, Changing Modes of Discrimination, and Discrimination Theory II. HOW THE FRAMEWORKS SQUEEZE OUT POTENTIALLY COGNIZABLE CLAIMS III. WHY THE FRAMEWORKS LEAD TO FAULTY DECISIONMAKING A. The Frameworks Suffer from Fact and Theory Capture B. Courts Tend to View the Frameworks as Complete C. Courts Tend to Treat the Frameworks as Separate IV. OTHER CONSEQUENCES OF REFLEXIVE RELIANCE ON FRAMEWORKS A. Courts and Litigants Use Path-Dependent Reasoning of the Frameworks Rather than Direct Reasoning B. The Frameworks Create Doctrinal, Theoretical, and Procedural Confusion V. VISUALIZING THE CHANGED LANDSCAPE A. A Return to First Principles B. Questioning the Necessity of the Frameworks C. Addressing Concerns Regarding Political Will, Consistency, Certainty, and Efficiency CONCLUSION INTRODUCTION

In the 1970s, federal courts began identifying categories of discrimination, such as disparate impact, disparate treatment, and harassment. They then created elaborate, multipart rubrics tied to each category. (1) Modern employment discrimination law is defined by these frameworks. They serve as gatekeepers that control the substantive discrimination narratives that juries hear and also structure the ways that judges and lawyers think about discrimination.

Legal scholarship is replete with excellent articles challenging the specific frameworks that courts use to evaluate discrimination claims. (2) This Article does not challenge any particular framework. Instead, it challenges whether courts should even use frameworks to conceptualize discrimination in the first place. Just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims.

The Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be examined.

Second, it demonstrates how these frameworks tend to squeeze out claims that are arguably cognizable under the federal discrimination statutes' broad operative language. This happens because the categories and rubrics that comprise the frameworks are overly influenced by the facts and theories of the specific cases through which they were developed and are resistant to change. Additionally, courts tend to treat the typology of frameworks as representing a complete lens through which to view discrimination and fail to consider the frameworks as part of a unified whole. This reasoning produces a factually and theoretically narrow view of employment discrimination law driven by path dependence.

Litigating by typology results in a gap between what is cognizable under the frameworks and what is arguably cognizable under the federal discrimination statutes' operative provisions. Thus, the key question in modern discrimination cases is often whether the plaintiff can cram his or her facts into a recognized structure and not whether the facts establish discrimination. This Article argues that path-dependent reasoning has allowed courts to implicitly reject new theories of discrimination, without actually analyzing whether such theories are viable. Path-dependent reasoning also causes courts to dismiss claims that straddle more than one framework or that do not fit neatly within recognized structures. The typology has led to doctrinal, procedural, and theoretical confusion within employment discrimination law and has mired the field in endless questions about frameworks rather than in addressing the field's core issues.

These frameworks have effects outside the courtroom. More than forty years after the passage of Title VII, workers continue to experience discrimination. (3) When workers describe this discrimination, though, they often report incidents that would not be legally cognizable under current frameworks but that are arguably discriminatory within the statutory language. (4) When employers define and measure discrimination in a workplace, they are likely to do so against the yardstick set by the recognized frameworks.

Because this legal yardstick does not measure the full extent of potentially cognizable discrimination, however, it is a poor metric for evaluating whether discrimination occurs.

The Article's final contribution is to propose a simpler model for thinking about employment discrimination law. It argues for a return to first principles that would require courts to specifically define key statutory language.

The Article is organized in the following manner. Part I describes how courts developed the frameworks for evaluating discrimination claims and shows how the frameworks remain unresponsive to changes in the workplace and discrimination theory. Part II provides examples of how the frameworks distort discrimination inquiries, and Part III explores why the frameworks cause courts to ignore potentially cognizable claims. Part IV considers other serious consequences that result from relying on the frameworks. Finally, Part V proposes a way to think about discrimination law without dependence on the frameworks.

1. THE DEVELOPMENT OF THE DISCRIMINATION FRAMEWORKS

   The history of employment discrimination law could be described as a history of frameworks. In an almost predictable pattern, the Supreme Court has recognized a category of employment discrimination, and then--either in the same case or sometime thereafter--created a multipart test for evaluating it. For some frameworks, decades of unrest then follow as lower courts struggle with either the rubric itself or with integrating the rubric into other parts of employment discrimination law. The Supreme Court often has--and Congress occasionally has--stepped in to "fix" the framework.

   This pattern did not always exist. In the 1960s, the bulk of employment discrimination claims alleged that employers (or unions) had adopted explicit policies regarding hiring, termination, or promotion based on a person's race or gender. (5) Courts evaluated such claims in a fairly straight the alleged action because of a protected trait. (6) As courts began to divide discrimination law into categories, however, this broader approach to employment discrimination changed. (7)

   This Part describes the development of the current employment discrimination typology from two perspectives. The first Section maps the discrimination model as it developed, largely through Supreme Court precedent. The second Section juxtaposes the development of the model with changes in the workplace and evolving understandings about how discrimination occurs.

   While reading this history, it is important to remember that each of the discrimination frameworks was originally developed in the context of Title VII and was, in theory, supposed to support Title VII's primary operative language, which provides as follows:

   It shall be an unlawful employment practice for an employer--

   (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

   (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (8)

   Although not identical, the Age Discrimination in Employment Act ("ADEA") and the Americans with Disabilities Act ("ADA") have similarly broad operative language. (9)

   1. The Legal History of the Discrimination Frameworks

      The legal history of the employment discrimination frameworks can be shown through the development of the disparate impact, individual disparate treatment, and harassment doctrines. In 1971, the Supreme Court interpreted Title VII to allow plaintiffs to assert discrimination based on disparate impact, (10) reasoning that Title VII prohibited not only intentional conduct, but policies and practices that created "built-in headwinds" to the hiring of black employees. (11) Thus, the Court in Griggs v. Duke Power Co. articulated a reason for recognizing a category of discrimination called "disparate impact" and began to develop a rudimentary structure for evaluating it. (12) The Court indicated that the defendant company's testing and high school diploma requirements were discriminatory, for example, because they did not "bear a demonstrable relationship to...