In Pretext in Peril, (1) Professor Natasha Martin argues convincingly that the United States Supreme Court and the lower federal courts have interpreted Title VII of the 1964 Civil Rights Act (2) to minimize a plaintiff's success in proving discrimination. She posits that the courts appear hostile to anti-discrimination cases because they believe that discrimination is a past evil that has been virtually eliminated. (3) This mindset, combined with overcrowded dockets and a tendency to empathize with the employer's prerogatives, has led to judicial activism that has undermined Title VII's potential. (4)
Focusing on disparate treatment, which requires proof of discriminatory intent, Professor Martin notes accurately that employers' new sophistication about employment discrimination has virtually eliminated direct evidence of discrimination. (5) But, unfortunately, as Professor Martin explains, discrimination continues to exist at perhaps a more subtle level, a fact that has led many courts to believe that "real" discrimination exists no more. (6)
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, (7) 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 (8) redefines discrimination in an ahistorical and acontextual fashion by elevating colorblindness above all other values; (9) it both limits and expands disparate treatment to conscious use of race in decisionmaking while simultaneously restricting the usefulness of disparate impact (10) 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.
II. PROFESSOR MARTIN'S CRITIQUE
The focus of Professor Martin's critique is the last stage of the indirect proof method first established in McDonnell Douglas Corp. v. Green (11) Recognizing that it may be difficult to prove intentional discrimination in cases where the employer does not admit bias, the Supreme Court established the McDonnell Douglas proof mechanism, which allows the plaintiff to use a three-step method to prove discrimination indirectly. (12) The first stage establishes the prima facie case; the second stage shifts the burden to the defendant to produce evidence that it had a legitimate, non-discriminatory reason for the adverse employment action. (13) Finally, in the third stage, the plaintiff has the burden of demonstrating that the employer's legitimate, non-discriminatory reason is a pretext for discrimination. (14) This burden of proving pretext merges with the plaintiff's ultimate burden of persuasion and, if proved, ordinarily is proof of discriminatory intent. (15) The pretext stage, as Professor Martin points out, is the most important stage of the McDonnell Douglas proof method. …