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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 …
No Intent, No Foul? Unconscious Bias In Employment Decisions, Martin J. Katz
No Intent, No Foul? Unconscious Bias In Employment Decisions, Martin J. Katz
Sturm College of Law: Faculty Scholarship
Many commentators have criticized current anti-discrimination law on the grounds that it does not adequately prohibit unconscious bias in employment decisions. That claim is wrong: Unconscious bias is fully actionable, and it can generally be proved by knowledgeable employment lawyers. The idea behind unconscious bias is that well-meaning employers and supervisors, who would likely consider themselves supporters or even champions of equality, might subconsciously harbor attitudes that result in negative employment decisions for women and minorities.