Accounting for Price Waterhouse: Proving Disparate Treatment Under Title VII

58 Pages Posted: 3 Jan 2014

Date Written: January 2, 1991

Abstract

The traditional "McDonnell Douglas" litigation structure was cast into serious question by the Supreme Court's decision in Price Waterhouse v. Hopkins, which created an alternative mode of analysis for some subset of individual disparate treatment cases claiming discrimination in violation of Title VII. In the wake of that decision, the question of what cases ought to be analyzed under what structure has emerged starkly. On the one hand, the dividing line seems straightforward: McDonnell Douglas cases are "pretext" problems: did the alleged discrimination in fact occur. In this view, Price Waterhouse cases are "mixed motive" ones: there are both legitimate and illegitimate reasons present, and the question is simply which caused the decision.

The problem with this perspective is that both kinds of cases pose the "pretext" problem: In pure McDonnell Douglas situations, the question is whether the legitimate reason exists at all; but in pure Price Waterhouse cases, it is whether the legitimate reason is the reason for the decision. In both instances, the employer claims that it acted because of a nondiscriminatory reason, and the plaintiff tries to show that this claim is a pretext for the true reasons for its action.

It is also possible to say that all cases are mixed motive ones: even McDonnell-Douglas cases are predicated on the existence of discriminatory motivations, and the employer's articulation of a nondiscriminatory reason does not negate the possibility that discrimination motivated the decision. It merely offers an alternative motivation that may (or may not) be more plausible than the inference of discrimination. Further, while racial and gender bias remains deeply embedded in American society, the law and social attitudes have changed sufficiently for there rarely to be a case in which the employer acts solely from discriminatory motives. Most employment decisions will flow from a muddle of motives.

This suggests that, from a commonsense perspective, almost all cases involving any discrimination at all are likely to be Price Waterhouse cases, not McDonnell-Douglas ones, in the sense that the employer will have both good reasons and bad ones for its adverse employment action.

Keywords: McDonnell Douglas, Price Waterhouse, pretext, mixed motives, direct evidence, circumstantial evidence, motivating factor, substantial factor, determinative factor, but-for causation, shifting burdens, litigation structure, Title VII

Suggested Citation

Sullivan, Charles A., Accounting for Price Waterhouse: Proving Disparate Treatment Under Title VII (January 2, 1991). 56 Brooklyn Law Review 1107 (1991), Available at SSRN: https://ssrn.com/abstract=2373963

Charles A. Sullivan (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-477-7121 (Phone)

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