D. Wendy Greene


First, this response addresses the lower courts' opinions in Ash v. Tyson Foods, Inc., as well as the Supreme Court's per curiam opinion in this case, which espouses a more contextualized analysis of pretext in race-based disparate treatment cases. Next, this response examines Holiness v. MooreHandley, Inc. and the acontextual, colorblind analysis the court applied. Each case illustrates the negative effects of courts analyzing pretext without context at different stages of race discrimination litigation: during post-trial phases in Ash v. Tyson Foods, Inc. and at the summary judgment stage in Holiness v. Moore-Handley, Inc. Ash v. Tyson Foods, Inc. and Holiness v. Moore-Handley, Inc. reveal judicial nullification of the jury's role and provide an opportunity to show the importance of contextualizing facts in race discrimination cases. I argue that judges should not eliminate this jury function summarily in disparate treatment cases; moreover, courts must apply a more nuanced methodology to these claims. Accordingly, I proffer a more contextualized approach to the Holiness case that considers historical and contemporary race and gender relations in the United States and their manifestations in the workplace. Finally, this response briefly considers transformations of jurisprudential methodology needed in disparate treatment cases to redress the subtleties of racial inequality and stigmatization and thus unlawful race discrimination in the contemporary workplace.

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