Proving Discrimination after Price Waterhouse and Wards Cove: Semantics as Substance

Abstract

Professor Kovacic-Fleischer discusses Price Waterhouse v. Hopkins and Wards Cove Packing Co. v. Atonio, decided during the 1988 Term of the Supreme Court, and discusses how they misuse precedents and terms of art. She explains how Wards Cove mistakenly applied the prima facie case analysis of a disparate treatment case to a disparate impact case, in conflict with Griggs v. Duke Power Plant, by failing to distinguish between the terms inference and presumption. She explains how the differing opinions in Price Waterhouse made complex what should have been a straightforward case about the type of proof a jury can consider in finding discrimination. The Civil Rights Act of 1991 subsequently amended Title VII to make the analysis of Griggs explicitly part of Title VII and clarify the type of evidence that can support a finding a discrimination.

Keywords: Civil Rights Act of 1990, Civil Rights Act of 1991, Title VII, burden of proof, burden of persuasion, inference, presumption, irrebutable presumption, rebuttable presumption, evidentiary presumptions, burden of coming forward, burden of producing evidence, prima facie case, disparate treatment