Law Commons^™

¡Viva La Evolución!: Recognizing Unconscious Motive In Title Vii, Ann C. Mcginley

Scholarly Works

This article analyzes the different proof mechanisms developed under Title VII discriminatory treatment doctrine, demonstrating their ability to identify unconscious, as well as conscious, discriminatory behavior. It demonstrates that soon after its enactment Title VII began to evolve, expanding its reach to unconscious discrimination. Although in many instances courts were unaware of this expansion, courts appear to have followed their intuition to further the broad remedial and preventive purposes of the statute. In response to the evolution and to the courts' failure to articulate a justification for their decisions, a counter-evolution is currently occurring, with many courts attempting rigidly to …