Towards a Unified Theory of the Law of Employment Discrimination

Abstract

The thesis of the article is that the elements of the two principal definitions or theories of employment discrimination, and impact, are identical except that the former includes the element of intent. The rationales for the two definitions are also the same: in both, race or gender, etc. is the cause in fact of the plaintiff's being denied an employment opportunity. The argument proceeds along these lines: The term facie case has two meanings, viz., the elements of the claim (prima facie-I) and proof of the elements of the claim (prima facie-II). A claim has a single prima facie-I, but many prima facie-II's. The terms disparate treatment and disparate refer, not to prima facie-I's, but to prima facie-II's. Prima facie-I can be deduced from prima facie-II. Analysis of and impact as prima facie-II's reveals that the conventional ways of proving of an individual (direct evidence of intent, different of indistinguishable persons, and the McDonnell Douglas formula) are highly similar. Statistical proof of is surprisingly similar to conventional proof of of an individual. Proof of impact is the exactly same as statistical proof of absent the proof of intent. The defenses, bona fide occupational qualification and business necessity, are also essentially similar. The result is that the two principal claims (prima facie-I's) of employment discrimination overlap almost completely. One claim, which may be called simpliciter, is comprised of five elements: the employer was covered by Title VII; the employer offered certain employment opportunities; the plaintiff is protected by the Act (was willing and able to accept the opportunity); the employer afforded the plaintiff a lesser chance than the comparator to benefit from the opportunity; and the cause of the plaintiff's lesser chance was race or gender. The other claim, which may be called intentional unequal treatment, is comprised of the preceding five elements plus the employer's intent to give the plaintiff a lesser chance.