Academic journal article American University Law Review

Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself

Academic journal article American University Law Review

Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself

Article excerpt

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court's decision in Staub v. Proctor Hospital. In Staub, the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a "federal tort." The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or "cat's paw") liability. Staub was not the first case in which the Court has suggested that a federal employment discrimination law is a federal statutory tort, but it was the most express and direct statement. Moreover, the Court's adoption of proximate cause, one of the most complicated, confusing, and criticized concepts in tort law, to analyze a prevalent issue in employment discrimination law is striking and provocative. Staub reinvigorates the debate about whether the Court and courts have imported too much tort law into employment discrimination law- the debate about the "tortification" of employment discrimination law.

Most discussions of tortification of discrimination law trace the origin to the Supreme Court's discussion of torts causation standards in Price Waterhouse v. Hopkins. However, it actually began much earlier. The ubiquitous pretext analysis, developed by the Court to analyze individual disparate treatment cases in McDonnell Douglas Corp. v. Green is a thinly veiled version of the tort doctrine res ipsa loquitur. Although there have been numerous critiques of the McDonnell Douglas analysis that have called for its abrogation, none have exposed it as the much-maligned tort doctrine. Evaluating McDonnell Douglas as res ipsa helps explain its weaknesses and shortcomings. After forty years of the pretext analysis, it is time to expel it from discrimination law. Abrogating the McDonnell Douglas analysis should be a significant first step in reconsidering the tortification of employment discrimination law.

"As one wit said: 'If the thing speaks for itself, why doesn't it talk in English?'"1

[A]n act of employment discrimination is much more than an ordinary font of tort law. The anti-employment discrimination laws are suffused with a public aura for reasons that are well known. Throughout this Nation's history, persons have far too often been judged not by their individual merit, but by the fortuity of their race, their sex, the color of their skin, or year of their birth, the nation of their origin, or the religion of their conscientious choosing. Congress has responded to these pernicious misconceptions and ignoble hatreds with humanitarian laws formulated to wipe out the iniquity of discrimination in employment, not merely to recompense the individuals so harmed but principally to deter future violations.

The anti-employment discrimination laws Congress enacted consequently resonate with a forceful public policy vilifying discrimination. A plaintiffin an employment discrimination case accordingly acts not only to vindicate his or her personal interests in being made whole, but also as a "private attorney general" to enforce the paramount public interest in eradicating invidious discrimination.2


What if I told you that the most important analytical framework in employment discrimination law is nothing more than a thinly veiled pretext for one of the most enigmatic, vexatious, and controversial doctrines of tort law? If I told you that the most basic and prevalent analysis in antidiscrimination law really is one of the most distrusted and marginalized analyses in tort law, would you be troubled? What if I told you that the ubiquitous pretext analysis derived from McDonnell Douglas Corp. v. Green3 is actually a slightly retrofitted version of res ipsa loquitur? Would you think that the very foundational analysis of employment discrimination law had been based on the best tort law had to offer or its dregs? …

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