At first glance disparate treatment law seems simple: an adverse employment action (such as a firing) is illegal where that action occurs "because of" a characteristic that is statutorily protected (such as race or sex). Despite this apparent simplicity, this Article points out that there are currently three distinct frameworks for proving disparate treatment. The difficulties are compounded by the fact that each framework places different burdens of proof on the plaintiff and defendant. So which framework applies in given situations? This Article first discusses the different frameworks and how they are applied, then proceeds to explain why the fragmented state of disparate treatment law is problematic. Finally, the Article proposes a unified framework based on the framework outlined in the Civil Rights Act of 1991, and explains why that framework is superior to the other possibilities.
Martin J. Katz,
Unifying Disparate Treatment (Really),
59 Hastings L.J. 643
Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss3/4