Into the Weeds: Modern Discrimination Law

Sandra F. Sperino*

Modern discrimination law is the law of minutiae. Judicial energy is not primarily focused on large questions about why workplace inequality exists or how to prevent it. It is not even focused on whether the plaintiff in a particular case was treated differently because of a protected trait. Instead, judicial energy centers on interpreting and applying an ever-growing phalanx of complicated court-created ancillary doctrines.

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims.¹ Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and whistles to these basic roadmaps. These court-created ancillary doctrines or subdoctrines require an ever-increasing amount of judicial attention.²

While legal scholars have challenged the ancillary doctrines individually,³ this Article examines them collectively. When viewed collectively, it is easier to see how the system of creating and using ancillary doctrines is significantly flawed.⁴ Any benefits that derive from it are outweighed by its problems.

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© 2020 Sandra F. Sperino. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law. I am indebted to faculty who provided insightful comments and questions through the Notre Dame School of Law Faculty Colloquium, the Saint Louis University School of Law Faculty Colloquium, and the University of Missouri School of Law Faculty Colloquium.

1 See generally Sandra F. Sperino, Rethinking Discrimination Law, 110 Mich. L. Rev. 69 (2011) (providing an overview of the frameworks used to evaluate disparate treatment, harassment, retaliation, and disparate impact).

2 This scenario is not unique to discrimination law. See, e.g., Jane B. Baron, Romancing the Real, 57 U. Miami L. Rev. 573, 577 (2003) (describing similar situation in zoning law); Randall R. Rader, Foreword, Always at the Margin: Inequitable Conduct in Flux, 59 Am. U. L. Rev. 777, 785–86 (2010) (describing a similar problem in patent law).

3 See, e.g., Suzanne B. Goldberg, Discrimination by Comparison, 120 Yale L.J. 728, 731–35 (2011) (explaining deficiencies in the “similarly situated” test); Natasha T. Martin, Pretext in Peril, 75 Mo. L. Rev. 313, 347–51 (2010) (critiquing the “stray remarks” doctrine); see also Kerri Lynn Stone, Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law, 77 Mo. L. Rev. 149, 179–80 (2012) (similarly critiquing the stray comments doctrine, and particularly the way in which courts employ the “stray” designation in determining the evidentiary worth of comment evidence).

4 At the outset, it is worth noting critiques about legal reasoning generally. See, e.g., Baron, supra note 2, at 573 (“Whether we talk doctrine, policy, or values, we, along with our opponents, play a fundamentally empty and meaningless game with fundamentally empty and meaningless forms. You cannot advance your cause with mere shadows.”); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1349–50 (1988); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5 (1984).