Friday, April 7, 2006
Sandra Sperino (Illinois) has posted a provocative article on SSRN entitled: Flying Without a Statutory Basis: Why McDonnell-Douglas is Not Justified by Any Statutory Construction Methodology.
From the abstract:
The McDonnell-Douglas three-part burden-shifting framework has come under increasing attack in recent years. While policy arguments in favor of eliminating the standard are important, one of the strongest arguments in favor if its demise, is that the standard was adopted without proper regard to the operative text, the legislative history, and the broad policies of Title VII.
This Article examines the McDonnell-Douglas framework through four leading models of statutory construction and concludes that a satisfactory statutory justification for the test is lacking. While it arguably may have been appropriate to justify this lapse in the past by claiming that the test was merely an evidentiary standard and could be created through the Supreme Court's supervisory authority without reference to normal principles of statutory construction, this argument is no longer compelling. In recent years, courts have begun to water down or eliminate McDonnell-Douglas' use as an evidentiary standard by juries, and, in the process, weakened the argument for its continued legitimacy.
This is sure to be an article that generates a lot of comment in the employment discrimination law community. You can download it here.
Hat Tip: Legal Theory Blog