Sturm College of Law
Disparate impact, Discriminatory causation, Employment discrimination
This Article proceeds in three Parts. Part I argues that McDonnell Douglas should never be required (and, in the process, dispels the nearly universally held myth that this framework proves or requires "but for" causation). Part II shows how a nonmandatory McDonnell Douglas would interact with the two alternative frameworks (Price Waterhouse and the 1991 Act), and also shows how a nonmandatory McDonnell Douglas can be implemented under current law. This Part also resolves the three doctrinal debates that currently plague disparate treatment law. Part III refutes most of the normative criticisms that have been leveled at McDonnell Douglas and demonstrates the importance of this framework to the goal of eradicating employment discrimination.
Originally published as Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV. 109 (2007).
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Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV. 109 (2007).