Ten Troubles with Title VII and Trait Discrimination Plus One Simple Solution (A totality of the Circumstances Framework)

• Author: Mark R. Bandsuch
• Position: Assistant Professor of Business Law, College of Business Administration, Loyola Marymount University; B.S., 1984, Miami University of Ohio
• Pages: 965-1116

TEN TROUBLES WITH TITLE VII

AND TRAIT DISCRIMINATION

PLUS ONE SIMPLE SOLUTION

(A TOTALITY OF THE CIRCUMSTANCES FRAMEWORK)

MARK R. BANDSUCH, S.J.*

I. INTRODUCTION

Title VII of the Civil Rights Act1 is the landmark legislation that

promotes equal employment opportunities for, and prohibits discrimination

against, previously prejudiced peoples.2 During its forty-four year history,

the Act has helped to change the color and contour of the employment

landscape—a fact symbolized most profoundly on January 20, 2009, when

Barack Hussein Obama became the first African-American President of the

United States.3 Yet, this historic event belies the sharp spike in workplace-

related discrimination charges over the preceding years4 and the relatively

poor success rates o f the employees who file Title VII claims.5

The four decade old Act was last amended significantly in 1991,6

which naturally raises additional questions about whether Title VII’s well-

worn approach adequately addresses some of the more subtle forms of bias

found in today’s multicultural workplace (e.g., the trait discrimination

inherent in many company dress codes). Even the amendments to Title

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* Assistant Professor of Business Law, College o f Busin ess Admi nistration, Loyola

Marymount Univ ersity; B.S., 1984, Miami University of Ohio; J.D., 1987 , Cleveland State

University; M.Div., 2000 , Jesuit School of Theology in Berkeley.

142 U.S.C. § 2000e (2006).

2See San Antonio Sch. Dist. v . Rodriquez, 411 U.S. 1 (1972).

3 President Obam a’s nomination of Sonia Maria Sotomayor to the United States

Supreme Cou rt, who was confirmed and sworn in on August 6 , 2009 as the first H ispanic

(Puerto Rican d ecent) and only third female Justice, is another recent example, with

obvious implications for th e future of Title VII in the court system.

4See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, CHARGE STATISTICS FY 1997

THROUGH F Y 2008, http://eeoc.gov/eeoc/statistics/enfor cement/charges.cfm (last visited

Dec. 12, 2009)[hereinafter EEOC Charge Statistics].

5 See Nathan Koppel, Job Discrimination Cases Tend to F are Poorly in Federal Court,

WALL ST. J., Feb. 19, 2009, a t A16.

6 Civil Rights Act of 1 991, Pub. L. No. 102-166, 105 Stat. 107 (codified as amend ed in

scattered sections of 2, 16, 2 9, 42 U.S.C.).

966CAPITAL UNIVERSITY LAW REVIEW [37:965

VII have led to divergent understandings and inconsistent applications of

its current analytical framework7 (which together total the “ten troubles” of

Title VII).

Part II of this article situates and explains each problem within one of

the three primary parts of the current analytical framework used by the

courts to evaluate Title VII cases: (1) plaintiff-employee’s prima facie

case, (2) defendant-employer ’s affirmative defenses, and (3) plaintiff’s

rebuttals to those defens es. Employee appearance policies provide

examples throughout this article because they demonstrate the difficulties

Title VII and the respective legal requirements of its three-part framework

encounter when addressing the more recent man ifestations of trait

discrimination. Part III outlines an alternative Totality of the

Circumstances (TOC) framework, which then is applied to a recently

litigated appearance policy in Part IV, comparing and contrasting it with

Title VII’s existing approach. This article presents the TOC framework

and the current Title VII problems it remedies in an effort to encourage the

courts and Congress to revisit and revise Title VII a nalysis in a manner

more appropriate for the shifting societal, political, and legal contexts

confronting the multicultural workplace of the twenty-first century.

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7 Price Waterhouse v. Hopkins, 490 U.S. 228, 279 (1989) (Kenn edy, J., dissenting

opinion).

2009] TITLE VII 967

II. TEN TROUBLES WITH TITLE VII’S CURRENT ANALYTICAL

FRAMEWORK8

The Civil Rights Act of 19649is Congress’ comprehensive anti-

discrimination legislation that addresses inequalities in voting, facilities,

education, housing, credit, and employment—with Title VII of the Act

dealing specifically withunlawful and discriminatory employment

practices.10 Congress currently recognizes four fund amental causes of

action under Title VII: (1) disparate treatment, (2) mixed-motives, (3)

disparate impact, and (4) retaliation.11The courts usually analyze each

theory under a comparable three-part analytical framework established in

McDonnell Douglas Corporation v. Green:12 which looks sequentially at

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8 The Ten Troubles with Titl e VII and Trait Discrimination are:

•Trouble #1: Title VI I’s Inability to Adequately Address Recent Forms of

Discrimination

•Trouble #2: The Immutability Standard Fails to Measure the Real Harms of

Assimilation and Subord ination

•Trouble #3: The Emphasis on Immutability as the Measure of Prote cted

Class Status

•Trouble #4: Th e Imprecision Between Un acceptable Stereotypes and

Acceptable Norms

•Trouble #5: Title VII’s Classifications of Intentionality Create Confusion

About Causation

•Trouble # 6: Title VII’s Clas sifications of Intentionality Fail to Adequately

Consider Cognitive Bias an d Stereotypes

•Trouble #7: The Confusion Caused by Title VII’s Affirmative Defen ses

•Trouble #8: The Complexity, Confusion, and Convergence of Title VII’s

Overall Framework

•Trouble #9: The Under and Over D etermination of Discriminat ion Resulting

from Title VII’s Framework

•Trouble #10: Title VII Fa ils to Fulfill Its Legislative Purpose

942 U.S.C. §§ 1981–200 0 (2006).

10Id. § 2000e(n). Although this paper focuses on Title V II’s directives to emp loyers,

Title VII also applies to varying degrees to employment ag encies, labor organiz ations, and

joint labor-management comm ittees. Id.

11Id. § 2000e-3(a).

12411 U.S. 792 (1973).