Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices' Motives Questionable

Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 B.C. L. Rev. 279 (2010). Martin J. Katz Things we like (lots): Irony. In 1973, the Supreme Court gave us McDonnell Douglas, the ubiquitous framework for proving discrimination under disparate treatment statutes such as Title VII. McDonnell Douglas has been widely criticized – often for good reason. McDonnell Douglas places the full burden of proving discriminatory causation on the party least equipped to prove it: the plaintiff. Additionally, most courts have read McDonnell Douglas as requiring but-for causation for liability, which provides an unjustified windfall to defendants in many cases where multiple motives are at play. Yet, despite these flaws, McDonnell Douglas does one thing well: It allows us to ascribe unsavory, and possibly discriminatory, motives to defendants who dissemble – those who provide non-credible reasons for their actions. There are alternatives to McDonnell Douglas, including the Court's 1989 Price Waterhouse framework. Price Waterhouse, too, was vulnerable to criticism. But at least that case permitted burden-shifting on the issue of causation. Yet, in Gross, the Court repudiated Price Waterhouse – at least in ADEA cases. In such cases, the Court held, plaintiffs bear the full burden of proving but-for causation. In her new article, Catherine Struve questions the Court's motives in Gross. And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Continue reading "Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices' Motives Questionable"

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