The Compromised Worker and the Limits of Employment Discrimination Law

43 Pages Posted: 25 Aug 2014

See all articles by Peter Siegelman

Peter Siegelman

University of Connecticut - School of Law

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

Suggested Citation

Siegelman, Peter, The Compromised Worker and the Limits of Employment Discrimination Law (August 23, 2014). Available at SSRN: https://ssrn.com/abstract=2485927 or http://dx.doi.org/10.2139/ssrn.2485927

Peter Siegelman (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5238 (Phone)
860-570-5242 (Fax)

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