The Impossibility of Agnostic Discrimination Law

Deborah M. Weiss, McCombs School of Business, University of Texas at Austin

Abstract

In recent years, evidence of the societal rate of discrimination has been introduced in a small set of employment discrimination cases. Most cases using this so-called social framework analysis are class actions that challenge the use of subjective employment practices, including the ongoing Dukes v. Wal-Mart, the largest class action in U.S. history.

Social framework evidence has been challenged as irrelevant, since unconnected to the facts of a particular dispute, and as more prejudicial than probative for holding individual defendants responsible for the wrongs of society as a whole. In this Article I argue that the societal rate of discrimination is relevant and generally non-prejudicial not only in subjective practice class actions, but in a far broader range of cases than previously realized, including those based on evidence of pretext, comparative evidence and even evidence of direct intent. Discrimination doctrine cannot be agnostic about the prevalence of differential treatment. It can only determine how and by whom frequency assessments are made.

At present the Supreme Court assigns almost wholly to lower courts and the trier of fact the task of determining whether discrimination has occurred, tacitly requiring courts and triers of fact to use their individual judgment about the highly contested issue of the frequency of discrimination in today’s society. Since there is nothing close to a social consensus on the frequency of differential treatment, the case law is dismayingly inconsistent. To reduce these inconsistencies, I propose using revised doctrinal rules based on both evidence and explicit assumptions about the societal rate of discrimination. I discuss several schemes that might be useful given various different conclusions courts might reach about the societal rate of discrimination.