Rethinking the Giant Mess that is Employment Discrimination Law

Sandra F. Sperino, Rethinking Discrimination Law (forthcoming Mich. L. Rev. 2011), available on SSRN. Alex B. Long Employment discrimination law is a big, confusing mess. That probably doesn't come as a shock to most readers of this site. The discrimination literature is filled with attempts to vilify, clarify, or unify the existing law in this area. In her forthcoming article, Rethinking Employment Discrimination Law, Professor Sandra F. Sperino displays little interest in doing either of the latter. But she's also clearly interested in doing more than just vilifying the existing state of affairs. Sperino begins by noting the development of the familiar frameworks or rubrics that courts use to evaluate discrimination claims. Of course, we are talking about McDonnell Douglas, Griggs, et al. She argues that "discrimination analysis has been reduced to a rote sorting process," with the result being that "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." (P. 2.) This approach raises at least two problems. First, it results in a huge expenditure of (arguably wasted) time and effort on the part of judges, lawyers, and litigants. Second – and the problem Sperino primarily focuses on – is that the approach results in courts failing to recognize or even consider new theories of discrimination. In other words, by focusing so heavily on the frameworks themselves, courts have lost sight of what discrimination law is supposed to be about and what the frameworks were theoretically designed to accomplish. Continue reading "Rethinking the Giant Mess that is Employment Discrimination Law"

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