The Role of Second‐Order Uniformity in Disparate Treatment Law: McDonnell Douglas's Longevity and the Mixed‐Motives Mess

• Author: Jamie Darin Prenkert
• Date: 01 September 2008
• DOI: http://doi.org/10.1111/j.1744-1714.2008.00063.x
• Published date: 01 September 2008

The Role of Second-Order

Uniformity in Disparate Treatment

Law: McDonnell Douglas’s Longevity

and the Mixed-Motives Mess

Jamie Darin Prenkert

n

I. INTRODUCTION

Perhaps you have read that McDonnell Douglas

1

is dead.

2

In the wake of the

Supreme Court’s decision in Desert Palace, Inc. v. Costa,

3

such morbid pre-

dictions have been popular among employment discrimination scholars.

r2008, Copyright the Author

Journal compilation r2008, Copyright the Author

511

American Business Law Journal

Volume 45, Issue 3, 511–564, Fall 2008

n

Assistant Professor of Business Law, Indiana University Kelley School of Business, Bloom-

ington, Indiana. B.A. Anderson University, 1995; J.D. Harvard Law School, 1998.

1

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2

See,e.g., Henry L. Chambers, Jr., The Effect of Eliminating Distinctions Among Title VII Disparate

Treatment Cases, 57 SMU L. REV.83 (2004); William R. Corbett, An Allegory of the Cave and the

Desert Palace,41H

OUS.L.REV. 1549 (2005) [hereinafter Corbett, An Allegory]; William R. Corbett,

McDonnell Douglas,1972–2003, May You Rest in Peace?, 6 U. PA.J.LAB.&EMP. L. 199 (2003)

[hereinafter Corbett, Rest in Peace]; Kenneth R. Davis, Price-Fixing: Refining the PriceWaterhouse

Standard and Individual Disparate Treatment Law,31F

LA.ST.U.L.REV. 859, 861 (2004); T.L.

Nagy, The Fall of the False Dichotomy: The Effect of Desert Palace v. Costa on Summary Judgment in

Title VII Discrimination Cases,46S.TEX.L.REV. 137 (2004); Jeffrey A. Van Detta, ‘‘Le Roi Est

Mort; Vive Le Roi!’’: An Essay on the Quiet Demise of McDonnell Douglas and the Transformation of

Every Title VII Case After Desert Palace, Inc. v. Costa into a ‘‘Mixed-Motives’’ Case,52D

RAKE L.

REV. 71, 76 (2003); Michael J. Zimmer, The New Discrimination Law: Price Waterhouse is Dead,

Whither McDonnell Douglas?,53E

MORY L.J. 1887 (2004).

3

539 U.S. 90, 101 (2003) (holding that a ‘‘mixed-motives instruction’’ may be given to the jury

even if the plaintiff does not present ‘‘direct evidence’’ of discrimination).

Yet, those scholarly obituaries have proven premature. Unfortunately,

McDonnell Douglas is as viable today as it has ever been and the limited

nature of the Desert Palace opinion, among other things, has contributed to

its continuing vitality.

Desert Palace was to have heralded the unification of disparate treat-

ment law

4

under the mixed-motives framework. That has not happened.

The question is ‘‘Why?’’ In this article I argue that the reason Desert Palace

has not unified disparate treatment law and that McDonnell Douglas lives on

with renewed vigor is that disparate treatment law is in disarray. Congress

needs to end the fragmentation of disparate treatment law and clean up

the mixed-motives mess.

Disparate treatment law has been faulted for its ‘‘fundamental

incoherence.’’

5

It has been called a swamp.

6

One scholar suggests that

disparate treatment law values pedantic attention to form over sub-

stance, relying on uncritical taxonomy rather than real legal reasoning.

7

And, it has been decried as chaotic.

8

Yet, the one constant among

all of this disorder has been and remains the ubiquitous burden-

4

In employment discrimination disputes under various federal civil rights statutes, ‘‘disparate

treatment’’ claims are distinguishable from ‘‘disparate impact’’ claims. Disparate treatment

claims involve allegations that the plaintiff was harmed by the employer’s differential

treatment of him or her based on his or her protected status (race, color, religion, sex, or

national origin). Disparate impact claims involve allegations that an employer’s policies or

practices, which are seemingly neutral with regard to race, color, sex, or national origin, have

a disproportionate negative impact on members of one of those groups. See,e.g., Griggs v.

Duke Power Co., 401 U.S. 424 (1971).

5

Martin J. Katz, The Fundamental Incoherence of Title VII:Making Sense of Causation in Disparate

Treatment Law,94G

EO. L.J. 489 (2006).

6

Robert Belton, Mixed-Motive Cases in Employment Discrimination Law Revisited: A Brief Updated

View of the Swamp,51M

ERCER L. REV.651, 662 (2000).

7

Marcia L. McCormick, The Allure and Danger of Practicing Law as Taxonomy,58ARK.L.REV.159

(2005).

8

Michael J. Zimmer, Chaos or Coherence: Individual Disparate Treatment Discrimination and the

ADEA,51MERCER L. REV.693 (2000).

512 Vol. 45 / American Business Law Journal

shifting paradigm of McDonnell Douglas.

9

Though a chorus of commenta-

tors

10

has rightfully clamored to euthanize the framework,

11

courts still

9

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas

framework is often used to prove and to evaluate the evidence in cases claiming disparate

treatment employment discrimination pursuant to Title VII of the Civil Rights Act of 1964

(Title VII), 42 U.S.C. § 2000e et seq. (1994), as well as the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 621 et seq. (1999), and the Americans withWith Disabilities Act of

1990 (ADA), 42 U.S.C. § 12101 et seq. (1995). See,e.g., Raytheon Co. v. Hernandez, 540 U.S.

44, 124 S. Ct. 513, 517–18 (2003) (analyzing an ADA claim using the McDonnell Douglas

framework); Reeves v.Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (assuming,

but not holding, that the McDonnell Douglas framework applies in ADEA cases); O’Connor v.

Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996) (same). Furthermore, the frame-

work has been used in cases brought pursuant to claims of discrimination outside the employment

context. See infra note 13.

10

See, e.g., Wells v. Colorado Dep’t of Transp., 325 F.3d 1205, 1221–28 (10th Cir. 2003)

(concurring opinion); Denny Chin & Jodi Golinsky, Moving Beyond McDonnell Douglas: A

Simplified Method for Assessing Evidence in Discrimination Cases,64BROOK.L.REV.659 (1998);

Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination

and Equal Employment Opportunity,47S

TAN.L.REV. 1161 (1995) (presenting a critique of the

pretext analysis based on the cognitive bias theory of stereotyping); Deborah C. Malamud, The

Last Minuet: Disparate Treatment After Hicks,93MICH.L.REV. 2229 (1995); Stephen W. Smith,

Title VII’s National Anthem: Is There a Prima FacieCase for the Prima Facie Case?,12LAB.LAW. 371

(1997); Sandra F. Sperino, Flying Without a Statutory Basis: Why McDonnell Douglas is not Justified

by any Statutory Construction Methodology,43H

OUS.L.REV. 743 (2006) (arguing that McDonnell

Douglas was not supported by the language of Title VII and thus lacks a proper statutory

foundation); Daniel W. Zappo, Note, A Causal Nexus Approach to Title VII Disparate Treatment

Claims,50R

UTGERS L. REV. 1067 (1998). But see William R. Corbett, Of Babies, Bathwater, and

Throwing out Proof Structures: It is not Time to Jettison McDonnell Douglas,2EMP.RTS.&EMP.

POL’YJ. 361 (1998) (responding to Malamud, supra, and arguing that McDonnell Douglas is useful

and serves both a practical and educational purpose); Christopher R. Hedican et al., McDonnell

Douglas: Alive and Well,52D

RAKE L. REV. 383, 425 (2004) (‘‘We believe that McDonnell Douglas

provides a fair and appropriate way to ferret out discrimination.’’); Matthew R. Scott & Russell

D. Chapman, Much Ado About NothingFWhy Desert Palace Neither MurderedMcDonnell Douglas

Nor Transformed All Employment Discrimination Cases to Mixed-Motive,36S

T.MARY’SL.J. 395

(2005); John Valery White, The Irrational Turn in Employment Discrimination Law: Slouching

Toward a Unified Approach to Civil Rights L aw,53MERCER L. REV. 709 (2002) (endorsing a

modified version of the McDonnell Douglas framework, while retaining much of the three-step

structure, as well as collecting and discussing the various critiques of the McDonnell Douglas

framework).

11

For purposes of this article, I start with the assumption that McDonnell Douglas is problematic

and has outlived its useful life. I make no attempt to mount a comprehensive case for this

claim, but others have. See supra note 10 and authorities cited therein. I will comfortably stand

on their shoulders to make my argumentsas to why their claims have not been heeded. But see

generally Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV.109 (2007)

(offering a careful and nuanced interpretation of the proper role of the McDonnell Douglas frame-

work in light of the 1991 Act and advocating its continued use).

2008 / Role of Second-Order Uniformity in Disparate Treatment Law 513