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 th e Civil Rig hts Act1 is t he landmark leg islation th at

promotes equal employment opportunities for, and p rohibits discrimination

against, previ ously prej udiced peop les.2 During its forty-four year history,

the Act has helped to change the color and cont our of the emp loyment

landscape—a f act symboli zed most profoundly on Janu ary 20, 2 009, when

Barack Hussein Obama becam e the first Afri can-American President of th e

United States. 3 Yet, this h istoric event belies the s harp 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 ol d Act was las t amended sig nificantly in 1991,6

which natu rally rais es addit ional q uestions about wheth er Title VII’s well-

worn approach adequately addresses so me of the more sub tle forms of bias

found in today’s mul ticultural work place (e.g ., the trait discrimination

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

_______________________________________________________

* 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.

1 42 U.S.C. § 2000e (2006).

2 See 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.

4 See 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.).

966 CAPITAL UNIV ERSITY LAW REVIEW [37:965

VII have led to divergent understandings and inconsistent app lications of

its current anal ytical framework7 (which t ogether total the “ten t roubles” of

Title VII).

Part II of this art icle sit uates 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-employ ee’s prima facie

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

rebuttals to tho se defens es. Employee appearance po licies p rovide

examples throughout t his article because they demon strate the difficulties

Title VII and the respe ctive leg al require ments o f its three-part framework

encounter when addres sing the more recent man ifestations of trait

discrimination. Part III outlines an al ternative Totality of the

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

litigated appearance policy in Part IV, comparing and contrasti ng it with

Title VII’s existing approach. Thi s article presents the TOC fra mework

and the curren t Title VII problems it remedi es 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 s ocietal, politi cal, and legal contexts

confronting the mul ticultural workp lace of the twent y-first centu ry.

_______________________________________________________

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 Civ il Ri ghts Act o f 196 49 is Cong ress’ comprehensive anti-

discrimination legislat ion that addresses inequalities in voting, facilities,

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

dealing specifically with u nlawful and discriminat ory employment

practices.10 Congress currently recog nizes four fund amental causes of

action under Title VII: (1) d isparate tre atment, (2) mi xed-motives, (3 )

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

theory under a comparable three-part an alytical framework established in

McDonnell Douglas Corporation v. Green:12 which looks s equentially at

_______________________________________________________

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

9 42 U.S.C. §§ 1981–200 0 (2006).

10 Id. § 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.

11 Id. § 2000e-3(a).

12 411 U.S. 792 (1973).