I agree with Professor Martin's premise that it has become increasingly difficult to prove disparate treatment, especially in light of courts' aggressive use of summary judgment. I argue in this essay that the courts' retrenchment in Title VII cases results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of"pretext." Moreover, I posit that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual fashion by elevating colorblindness above all other values; it both limits and expands disparate treatment to conscious use of race in decisionmaking while simultaneously restricting the usefulness of disparate impacto to attack policies and practices having a disparate effect on historically disadvantaged groups. This redefinition of discrimination tilts the law toward protecting the interests of white employees over those of their black and other minority colleagues because discrimination against minority employees has gone underground - both consciously and unconsciously - and, therefore, cannot be remedied. Additionally, any overt attempt to remedy discrimination against racial minorities is treated as discrimination against their white counterparts. While space does not permit me to flesh out a solution to this problem, I suggest that scholars work on a new proof construct that would accommodate what we currently know about discrimination: that much of it operates at the unconscious level.
Ann. C. McGinley,
75 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol75/iss2/5