How Diversity Can Redeem the McDonnell Douglas Standard: Mounting an Effective Title VII Defense of the Commitment to Diversity in the Legal Profession

Abstract

This Article undertakes an analysis, both quantitative and qualitative, of the developing body of Title VII diversity law. The jurisprudence of diversity was first developed by the U.S. Supreme Court in equal protection cases, but it has not been confined to that context. In particular, lower federal courts have been adjudicating cases asserting an interest in diversity as a means of challenging or justifying race/ethnicity- or gender-conscious policies and/or practices under Title VII. These cases have given rise to a body of Title VII diversity law that has remained largely unexplored in the scholarly literature. Because these cases have gone largely unnoticed, they have not been mined for any guidance they might offer to employers generally, and legal employers specifically, on how best to structure workplace diversity efforts to minimize the risk of legal liability under Title VII and, conversely, to maximize their Title VII defense. This Article surveys these cases and offers an analysis that seeks to: (1) situate this developing body of diversity law within the existing Title VII landscape, and (2) inform the development of legally defensible workplace diversity programs.

Keywords: diversity, Title VII, civil rights