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ADEA, Title VII, Civil Rights Act of 1991, Burden-shifting

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Sturm College of Law


This Article will proceed as follows: Part I will explain Gross in terms of causation and unification. Part II will argue that Gross rejected the doctrine of uniformity, a well-established and useful canon of statutory construction, without explanation. Part III will show how the courts‟ post-1991 rejection of uniformity, culminating in Gross, might be seen as a form of judicial recalcitrance. However, that Part will suggest that the Court's rejection of uniformity in Gross is better understood as a rejection of burden-shifting in disparate treatment doctrine. Finally, Part IV will argue that burden-shifting is normatively desirable in disparate treatment doctrine, and that Gross adopted the worst of the causal standards available to it. The Article concludes with a call for decisive legislative action.

Publication Statement

Originally published as Martin J. Katz, Gross Disunity, 114 PENN. ST. L. REV. 857 (2010).

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