The Compromised Worker and the Limits of Employment Discrimination Law
43 Pages Posted: 25 Aug 2014
Date Written: August 23, 2014
Abstract
Why do employment discrimination plaintiffs fare so poorly? Many explanations have been offered, but this essay suggests a new one: a substantial fraction of all plaintiffs are “compromised” workers, meaning that they have done something on the job that might plausibly justify the adverse treatment — typically, firing — about which they are complaining. As a matter of both doctrine and logic, compromised plaintiffs assuredly can be legitimate victims of discrimination. But they face substantial practical difficulties in proving that their employer relied on a prohibited characteristic in its treatment of them because, by definition, their behavior offers a plausibly legitimate alternative explanation for their treatment. After demonstrating the significance of “compromised” plaintiffs, this essay examines the reasons for their prevalence and suggests (modest) doctrinal solutions for coping with the particularly intractable problems they present.
Keywords: employment discrimination
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