Into the Weeds: Modern Discrimination Law

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and whistles to these basic roadmaps. These court-created ancillary doctrines or subdoctrines require an ever-increasing amount of judicial attention. While legal scholars have challenged the ancillary doctrines individually, this Article examines them collectively. When viewed collectively, it is easier to see how the system of creating and using ancillary doctrines is significantly flawed. Any benefits that derive from it are outweighed by its problems. This Article proceeds as follows. Part I explores how the court-created doctrines do not provide a principled basis for judges to resolve even simple cases. Part II focuses on several ancillary doctrines and shows how each of these doctrines is removed from the text and purposes of the statute. Each doctrine has spawned its own set of terms of art, exceptions, and subdoctrines, which draw the courts into endless questions about how to interpret and apply the court-created doctrine. Part III discusses how a new ancillary doctrine, cat’s paw theory, is prone to these same problems. Part IV explores how employment discrimination law is collapsing in on itself as courts are called upon to resolve conflicts between the ancillary doctrines. Part V shows how the ancillary doctrines contain mistaken factual inferences and underestimate the complexity of the American workplace. It proposes that courts abolish or diminish the ancillary doctrines and create a statement rule strongly discouraging courts from creating new ones