Discrimination Redefined

In Pretext in Peril, Professor Natasha Martin argues convincingly that the United States Supreme Court and the lower federal courts have interpreted Title VII of the 1964 Civil Rights Act to minimize a plaintiff’s success in proving discrimination. She posits that the courts appear hostile to anti-discrimination cases because they believe that discrimination is a past evil that has been virtually eliminated. This mindset, combined with overcrowded dockets and a tendency to empathize with the employer’s prerogatives, has led to judicial activism that has undermined Title VII’s potential. Focusing on disparate treatment, which requires proof of discriminatory intent, Professor Martin notes accurately that employers’ new sophistication about employment discrimination has virtually eliminated direct evidence of discrimination. But, unfortunately, as Professor Martin explains, discrimination continues to exist at perhaps a more subtle level, a fact that has led many courts to believe that “real” discrimination exists no more. I agree with Professor Martin’s premise that it has become increasingly difficult to prove disparate treatment, especially in light of courts’ aggressive use of summary judgment. I argue in this essay that the courts’ retrenchment in Title VII cases results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of