Joseph Seiner

In this article Professor William Corbett does an excellent job of explaining the “tortification” of discrimination law and how the McDonnell Douglas analysis can be viewed as a form of the res ipsa loquitur doctrine. Professor Corbett’s analysis of this issue provides a fresh look at a well-known tort doctrine, and its possible application to discrimination law.

In the first part of his article, Professor Corbett examines how employment discrimination has been transformed by tort law over time. He explains how, subsequent to the passage of Title VII, tort law has been “vigorously infused” into discrimination doctrine. Professor Corbett traces how this transformation has occurred over time — looking at how tort law principles can be found in Price Waterhouse v. Hopkins and section 1981a of the Civil Rights Act of 1991. He also demonstrates how the move toward tort law can be found in the types of claims being pursued by plaintiffs, as well as the limited availability of the class action mechanism for workforce victims. Finally, looking at a number of more recent Supreme Court cases, he shows how tort principles now play a major role in employment discrimination cases. Continue reading "Res Ipsa Loquitur & Employment Discrimination?"

Alex B. Long

Employment discrimination law is a big, confusing mess.  That probably doesn’t come as a shock to most readers of this site.  The discrimination literature is filled with attempts to vilify, clarify, or unify the existing law in this area.  In her forthcoming article, Rethinking Employment Discrimination Law, Professor Sandra F. Sperino displays little interest in doing either of the latter.  But she’s also clearly interested in doing more than just vilifying the existing state of affairs.

Sperino begins by noting the development of the familiar frameworks or rubrics that courts use to evaluate discrimination claims.  Of course, we are talking about McDonnell Douglas, Griggs, et al.  She argues that “discrimination analysis has been reduced to a rote sorting process,” with the result being that “the key question in modern discrimination cases is often whether the plaintiff can cram his or her facts into a recognized structure and not whether the facts establish discrimination.”  (P. 2.) This approach raises at least two problems.  First, it results in a huge expenditure of (arguably wasted) time and effort on the part of judges, lawyers, and litigants. Second – and the problem Sperino primarily focuses on – is that the approach results in courts failing to recognize or even consider new theories of discrimination.  In other words, by focusing so heavily on the frameworks themselves, courts have lost sight of what discrimination law is supposed to be about and what the frameworks were theoretically designed to accomplish. Continue reading "Rethinking the Giant Mess that is Employment Discrimination Law"