Matters of Perspective: Restoring Plaintiffs’ Stories to Individual Disparate Treatment Law
Volume 84, No. 4, Summer 2012
By Paul J. Sopher

The question of “what happened” in litigation starts with the stories that the parties on either side of the lawsuit tell. Parties tell their stories to their lawyers, lawyers tell the stories to the court through pleadings and arguments, and the court in turn interprets and retells the stories, determining what they are “about,” legally and factually. This telling and retelling of stories is “how law’s actors comprehend whatever series of events they make the subject of their legal actions.” Before a factfinder enters the picture, courts frame what a lawsuit is “about” by constructing litigants’ stories into “facts.” And they do so, inescapably, through the prism of their own interpretations and understandings, conscious or unconscious. How and what stories emerge in the litigation, however, are not just affected by a particular judge’s framing of the facts. The very principles, rules, tests, and analytic devices of which the law itself is composed can affect this outcome on an even deeper level.

A good deal of scholarship on individual disparate treatment law has been geared toward criticizing how the burden-shifting proof framework first set forth in McDonnell Douglas Corp. v. Green has unjustly interfered with substantive outcomes of cases. One effect of the framework’s use that has not been isolated in this literature, however, is how it unfairly shifts the focus of the court’s attention on the employer-defendant’s perspective to the exclusion of the employee-plaintiff’s perspective; that is, how the framework prevents employee-plaintiffs’ stories from being told. This is the focus of this Comment.

As originally set forth, the McDonnell Douglas framework was thought to be a boon to plaintiffs by providing them with a method of proving discrimination “indirectly.” That is, the framework provided a means for plaintiffs to create an inference of discriminatory intent against the employer by casting sufficient doubt on the reasons the employer gave for taking the employment action in question (e.g., refusing to hire or terminating plaintiff). Accordingly, analysis under the framework proceeded by focusing heavily on the stories defendants had to tell and whether or not those stories were credible.

Supreme Court decisions subsequent to McDonnell Douglas, however, have severely limited the framework’s relevancy and applicability, and emphasized that the adequacy of plaintiff’s evidence in toto should be the prevailing consideration of the inquiry. These decisions essentially rendered steps one and two of the framework mere formalities and situated the pretext step as the central concern of the case. They further suggested that the analysis at the pretext step is no different than an ordinary sufficiency of the evidence analysis which would be used in any civil case absent the shifting of burdens called for by the framework. In none of its decisions, however, has the Court formally discarded the framework.

What has become clear after these decisions is that the formal steps of the framework do not really lead anywhere except, at best, back to where plaintiff would have been in the framework’s absence. In the hands of the lower courts, however, the steps in the framework have not turned out to be mere harmless detours en route to the ultimate issue; they have functioned to steer and shape courts’ analyses to the detriment of plaintiffs. In the end, the employee-plaintiff says “discrimination,” the employer responds “business reason,” and lower courts sort out these cases guided by an employer-centered understanding of the employment situation.

This has been particularly appreciable at the summary judgment stage of litigation. Despite the Supreme Court’s admonitions to center the inquiry on the sufficiency of all of the evidence of record and courts’ obligation to draw all inferences in favor of the nonmoving party, summary judgment analyses in the lower courts commonly privilege defendants’ point of view and close off inquiry into potentially valuable evidentiary avenues stemming from the plaintiff-employees’ perspective. Additionally, use of the framework has caused courts to divide up and isolate plaintiffs’ evidence, testing each piece for its ability to specifically rebut defendants’ proffered reasons instead of viewing the evidence as an aggregate whole—that is, as a complete story.

What lower courts should be doing at summary judgment is making an objective assessment of the evidence of the record, including evidence flowing from the employee’s perception of the workplace. Using the employee’s perspective as one evidentiary channel, a totality of the circumstances should be gauged and the propriety of summary judgment decided against that backdrop. This Comment looks to the hostile work environment and retaliation contexts to support this idea.

Aligning itself with and drawing from that scholarship critiquing McDonnell Douglas’s placement of procedure over substance, this Comment argues that disparate treatment law in its present form has unfairly hindered plaintiff-employees’ stories from being told, and looks to hostile work environment and retaliation doctrines to provide guidance on how these stories may be restored. Part II.A provides background on Title VII and its modes of administration and enforcement. Part II.B discusses deficiencies in the litigation model to address victims’ experience of discrimination and to target discrimination as a societal ill. Against this backdrop, Part II.C looks at the development of Supreme Court disparate treatment doctrine and the effect of this doctrine on the lower courts. Part II.D outlines key concepts that have emerged from the hostile work environment and retaliation contexts. Part III.A then argues that use of a defendant-centered framework to assess disparate treatment cases simply no longer makes methodological sense in light of St. Mary’s Honor Center v. Hicks. Through close readings of two illustrative cases, Parts III.B and III.C trace how lower courts’ use of the framework at summary judgment can improperly lead to the foreclosure of plaintiff-employees’ perspectives from the analysis and result in improper grants of summary judgment where issues of fact exist for a jury. Part III.D then proposes that the areas of hostile work environment and retaliation provide doctrinal guidance in guarding against the issues identified in the Discussion.

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