This article initially examines the traditional theories of proof in Title VII cases. It then discusses approaches by lower courts in resolving the competing concerns raised in applying those traditional theories in challenges to subjective selection devices. This article next discusses the Supreme Court's resolution of the problem in Watson and suggests a workable alternative resolution that will not undermine the broad prophylactic purposes of Title VII.
Michael A. Middleton, Challenging Discriminatory Guesswork: Does Impact Analysis Apply?, 42 Okla. L. Rev. 187 (1989)