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Sturm College of Law


Employment discrimination, Pretext analysis


In her new article, Catherine Struve questions the Court’s motives in Gross. And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Like the skilled employment lawyer she is, Professor Struve divides and conquers each of the arguments advanced by the Court for its action. First, she considers the Court’s argument that the Civil Rights Act of 1991 does not apply to ADEA claims. While she concedes that this argument might be correct, she also notes that it is irrelevant. Then, she considers the Court’s textual argument: that there is no reference to burden-shifting in the ADEA. But she points out that the Price Waterhouse Court, reading virtually identical language in Title VII, found that burden-shifting was appropriate. Thus, Professor Struve concludes: The lynchpin of the Court’s reasoning in Gross was its repudiation of Price Waterhouse. . .

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Originally published as Martin J. Katz, Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable, JOTWELL (January 21, 2011) (reviewing Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 B.C. L. Rev. 279 (2010)),

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