In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite presumption seems to exist. I maintain that this shift influences the ways in which judges view discrimination claims. In Part III, I argue that judicial skepticism towards discrimination claims is not limited to statutory claims or the employment arena; a similar skepticism has emerged in the Supreme Court's equal protection jurisprudence. In examining discrimination claims under the Equal Protection Clause, the Court has resorted to a type of analytical formalism, similar to what one sees in pretext cases, that thwarts a nuanced and contextual examination of discrimination claims and impedes greater understanding of the nature of discrimination. These changes in the Court's equal protection jurisprudence coincide with shifting interpretations of Title VII - suggesting that it is not just pretext that is in peril but anti-discrimination law more generally
Anti-Discrimination Law in Peril,
75 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol75/iss2/4