The Ugly Truth About Appearance Discrimination and the Beauty of Our Employment Discrimination Law

The keynote speaker for the conference begins by reminding the audience that a mere quarter of a century earlier there was no federal law that expressly prohibited discrimination in employment based on physical appearance. Considering the difficulty of crafting and enacting an appearance-based employment discrimination law should lead to a fuller appreciation of not only our employment discrimination laws generally, but also the Americans with Disabilities Act specifically

Faragher, Ellerth, and the Federal Law of Vicarious Liability for Sexual Harassment by Supervisors: Something Lost, Something Gained, and Something to Guard Against

In this Essay, the author faces his nightmare exam question: he must define sexual harassment to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court\u27s recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort law, the result is appropriate given their different objectives. He further warns that, now that the ties between state tort law and Title VII have been severed, courts should not allow developments in sexual harassment cases to unduly influence state respondeat superior law

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

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, 131 S. Ct. 1186 (2011). 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, 490 U.S. 228 (1989). 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, 411 U.S. 792 (1973), 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 almost 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

Cross-Statute Employment Discrimination Claims and the Need for a Super Statute

Employment discrimination law is almost sixty years old in the United States. The law has developed under several different statutes enacted by Congress at different times. Congress has amended the statutes over the years, almost always in reaction to Supreme Court decisions with which it disagrees. The Supreme Court and the lower courts then interpret these piecemeal repairs of the law. This approach has produced a body of employment discrimination law in which there are significant asymmetries among the protected characteristics and the several statutes. These asymmetries produce both practical and theoretical problems, creating employment discrimination law that is cumbersome and almost inscrutable. These problems are particularly evident in cross-statute discrimination claims, such as race discrimination claims asserted under both Title VII and section 1981 and intersectional or hybrid discrimination claims that combine characteristics from different statutes. The problems created by asymmetrical law applied to cross-statute claims are exacerbated by, and demonstrated in, the recent decisions of the Supreme Court in Comcast Corp. v. National Association of African American-Owned Media, 140 S. Ct. 1009 (2020), and the Tenth Circuit in Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (2020). The asymmetrical standards of causation and remedies need to be addressed by Congress. Congress should repeal existing employment discrimination statutes and enact a single “super statute” that achieves a high degree of symmetry for the law applicable to the various protected characteristics