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Full-Text Articles in Labor and Employment Law
Hoisted By Their Own Petard: Struve Applies Pretext Analysis To The Court, Finds Justices’ Motives Questionable, Martin J. Katz
Hoisted By Their Own Petard: Struve Applies Pretext Analysis To The Court, Finds Justices’ Motives Questionable, Martin J. Katz
Sturm College of Law: Faculty Scholarship
In her new article, Catherine Struve questions the Court’s motives in Gross. And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Like the skilled employment lawyer she is, Professor Struve divides and conquers each of the arguments advanced by the Court for its action. First, she considers the Court’s argument that the Civil Rights Act of 1991 does not apply to ADEA claims. While she concedes that this argument might be correct, she also notes that it is irrelevant. Then, she considers the Court’s textual argument: that there is no …
Unifying Disparate Treatment (Really), Martin J. Katz
Unifying Disparate Treatment (Really), Martin J. Katz
Sturm College of Law: Faculty Scholarship
The Article will proceed in three parts. Part I will show the fragmented state of current disparate treatment law. Part II will demonstrate why this fragmentation is problematic as a normative matter, and why the I99I Civil Rights Act framework is superior to the Price Waterhouse and McDonnell Douglas frameworks. Part III will point the way toward a unified disparate treatment doctrine, in which all litigants will use the 1991 Act framework.
Reclaiming Mcdonnell Douglas, Martin J. Katz
Reclaiming Mcdonnell Douglas, Martin J. Katz
Sturm College of Law: Faculty Scholarship
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 …