Discrimination by comparison

Yale Law Journal

Volumn 120, Issue 4, 2011, Pages 728-812

  Goldberg, Suzanne B ^a  

^a Columbia Law School ^*  (United States)

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EID: 79851484903     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (519)

1. Chad Derum & Karen Engle, The Rise of the Personal Animosity Presumption in Title VII and the Return to "No Cause" Employment, 81 TEX. L. REV. 1177+1207 (2003) (recognizing that as soon as Title VII became law, "no sensible employer would admit that it based a decision on one of the prohibited classifications").
2. Frederick Winslow Taylor, The Principles of Scientific Management (1911). For further discussion, see infra notes 73-76 and accompanying text.
3. In this sense, the comparator is used to show causation-that the challenged acts occurred because of the protected trait and would not have occurred absent impermissible reliance on that trait. The causation determination is necessary because one of the central inquiries in a discrimination case is whether the challenged acts were "because of" a protected characteristic. Title VII of the Civil Rights Act of 1964 provides, for example, that "[i]t shall be an unlawful employment practice for an employer... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (2006) (emphasis added);.
4. 29 U.S.C. § 623a-1 (2006) (forbidding, through the Age Discrimination in Employment Act, adverse employment actions "because of such individual's age" (emphasis added)). To decide a disparate treatment claim under these and similar laws, a court must determine "whether the employer is treating 'some people less favorably than others because of'" any of these characteristics. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). While comparators are not statutorily required to make this determination, courts have come to treat them, in many cases, as essential to showing the requisite discriminatory intent.
5. Charles A. Sullivan, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 ALA. L. REV. 191, 204-206 (2009) (observing that a similarly situated comparator is not required by statute but that "the absence of a comparator is often fatal to a claim").
6. Further, although the ultimate question whether a defendant employer acted because of a protected characteristic is reserved for trial, courts regularly evaluate the link between the facts presented and the protected characteristic in the course of deciding dispositive pretrial motions. Disparate impact cases do not require a similar showing of discriminatory intent.
7. See infra Section III.C. In constitutional discrimination claims, by contrast, a showing of discriminatory intent is always required.
8. Washington v. Davis, 426 U.S. 229 (1976) (finding no legally cognizable claim of discrimination where a policy had a racially disproportionate impact but there was no evidence of discriminatory intent). The application of these doctrines and the related determinants of discrimination law's scope is also shaped, more generally, by views of discrimination law's social, political, and economic function. As Robert Post has observed, discrimination law is not actually concerned with eradicating all trait-based acts but rather only a subset of acts that has been socially disapproved.
9. Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1 (2000).
10. The case of Wendy Norville is illustrative. Norville was a black nurse who alleged that the hospital where she worked had discriminated against her by "refus[ing] to accommodate her disability despite having made job accommodations for two disabled white nurses." Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (Sotomayor, J.). Although Norville produced evidence about the better treatment of her white coworkers, she lost her claim because she did not persuade the court that other nurses were subject to the same standards governing performance evaluation and discipline, and... engaged in conduct similar to [hers].".
11. Id. at 96 (quoting Mazzella v. RCA Global Commc'ns Inc., 642 F. Supp. 1531, 1547 (S.D.N.Y. 1986), aff'd, 814 F.2d 653 (2d Cir. 1987));
12. Opsatnik v. Norfolk S. Corp., 335 F. App'x 220, 222 (3d Cir. 2009) (noting the district court's rejection of twenty-four proposed comparators).
13. infra Section II.B.
14. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 617 (1999) (Thomas, J., dissenting).
15. Id. at 611 (Kennedy, J., concurring) (quoting id. at 616 (Thomas, J., dissenting)).
16. This view is echoed by courts that have concluded that "equal opportunity" harassers, those who harass both men and women, do not violate sex discrimination prohibitions.
17. Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 262 (4th Cir. 2001) (rejecting a sex discrimination claim because "[i]n its totality, the evidence compels the conclusion that [the supervisor] was just... indiscriminately vulgar and offensive,... obnoxious to men and women alike");.
18. Kathryn Abrams, Complex Claimants and Reductive Moral Judgments: New Patterns in the Search for Equality, 57 U. PITT. L. REV. 337+ 345 n.47 (1996) (describing "the dominant 'equality theory' understandings that animate antidiscrimination law" as comparative).
19. infra Part IV. In conversation, Charles Sullivan has suggested that harassing acts and stereotyping statements amount to an admission of discriminatory intent. As will be elaborated below, I disagree with that contention, in part because employers ordinarily defend these kinds of acts and statements as nondiscriminatory and the courts often disagree with an employee's contention that the specified speech or conduct reflects discriminatory intent.
20. Price Waterhouse v. Hopkins, 490 U.S. 228, 236 (1989).
21. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). For discussion of other circumstances in which an antidiscrimination norm may be violated absent an actual comparator, including the possible role of a hypothetical comparator infra Section VI.B. Engquist v. Or. Dep't of Agric., 553 U.S. 591, 604 (2008).
22. I develop this claim primarily through identity-discrimination cases brought under federal employment discrimination laws rather than through cases that rest on constitutional equal protection challenges, state law claims, or discrimination claims outside the employment context. Yet, as will be elaborated, the analysis here is not limited to statutory prohibitions against discrimination or to the employment context. Discrimination based on factors other than identity, however, such as forms of economic discrimination addressed in antitrust law, is beyond this Article's scope. Still, some of the discussion below may be useful for the conceptualization of discrimination in those areas as well.
23. infra Part I.
24. Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429, 444, 449-52 (2004).
25. Laura Beth Nielsen, Robert L. Nelson & Ryon Lancaster, Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States, 7 J. EMPIRICAL LEGAL STUD. 175, 176-177 (2010) (concluding that employment discrimination plaintiffs "receive cursory attention in legal process and a limited remedy" and that discrimination law "seldom offers an authoritative resolution of whether discrimination occurred").
26. Employment discrimination plaintiffs who prevail at trial lose on appeal forty-two percent of the time; judgments for employerdefendants are reversed in fewer than eight percent of cases. Clermont & Schwab, supra, at 450;.
27. Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U. ILL. L. REV. 947+958 (describing employment discrimination plaintiffs as "one of the least successful classes of plaintiffs at the trial court level" as well as on appeal). Individuals who present claims involving more than one aspect of their identity-such as race and sex-fare even worse.
28. Minna J. Kotkin, Diversity and Discrimination: A Look at Complex Bias, 50 WM. & MARY L. REV. 1439 (2009) (discussing disproportionately high loss rates for individuals who bring complex discrimination claims). A new empirical study reinforces that even when individuals do not bring claims based on "overlapping axes of disadvantage," their "demographic diversity" further reduces their likelihood of success in discrimination litigation.
29. Rachel Best et al., Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 LAW & SOC'Y REV. (forthcoming 2011) (manuscript at 5) (on file with author). Some scholars maintain that courts' hostility toward discrimination claims is ideologically based.
30. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 22-26 (2006) (asserting that courts resist a structural approach to discrimination claims, in part, because many judges are ideologically opposed to second-guessing decisions by employers);
31. Michael Selmi, Why Are Employment Discrimination Cases So Hard To Win?, 61 LA. L. REV. 555, 561-569 (2001) (arguing that "courts approach cases from a particular perspective that reflects a bias against the claims" and that this ideological bias colors how courts adjudicate discrimination claims).
32. On this view, the choice of the comparator heuristic, which narrows the set of discrimination claims likely to succeed, as explained below, could be seen as both deliberate and in service of ideologically motivated, outcome-oriented aims. Whether or not this is actually the reason for courts' embrace of the comparator heuristic, the lack of transparency and accountability associated with the assumptions and judgments embedded in the heuristic's selection triggers the inquiries I pursue here.
33. SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES 52-72 (2007). Page explains that heuristics are, in essence, thinking rules that generate solutions to problems.
34. Id. at 55.
35. In discrimination cases, the critical factor-discriminatory intent-is hidden from view, and the comparator heuristic works by reducing the set of likely explanations for the adverse treatment that triggered the claim. The term "heuristics" came to prominence in cognitive psychology during the 1970s through the work of Daniel Kahneman and Amos Tversky, who "posited that because decisionmaking often involves an abundance of information, time pressures, and an array of possible alternatives, people intuitively and unconsciously use cognitive shortcuts or 'heuristics' to make decisions about probabilities.".
36. Nancy Levit, Confronting Conventional Thinking: The Heuristics Problem in Feminist Legal Theory, 28 CARDOZO L. REV. 391, 395-396 (2006);
37. Cass R. Sunstein, Lecture, Moral Heuristics and Moral Framing, 88 MINN. L. REV. 1556+1558 (2004) (analyzing the "pervasive role" that heuristics play in legal judgments).
38. JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982).
39. infra Parts II & III.
40. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001). As will become apparent, first- and second-generation claims are best understood as falling along a spectrum, rather than as sharply distinct.
41. See infra Part
42. Later in the Article I also briefly address additional second-generation theories related to implicit bias and other cognitive psychological research regarding discrimination.
43. infra ection V.C.
44. Intersectionality theory emerged in legal scholarship in the early 1990s.
45. Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241+1243-1244 (1991) ("[T]he experiences of women of color are frequently the product of intersecting patterns of racism and sexism, and... tend not to be represented within the discourses of either feminism or antiracism.") (footnote omitted);
46. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581+585 (1990) (characterizing and criticizing "gender essentialism-the notion that a unitary, 'essential' women's experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience").
47. More recent theory makes the point that the relationship among multiple identity traits is better characterized as multidimensional or cosynthetic, with traits interacting in both dominant and subordinating ways depending on the surrounding context. As Darren Hutchinson has written, "Multidimensionality theorists have attempted to move beyond intersectionality's antiessentialist roots by examining questions of 'intersecting' privilege and subordination-rather than simply focusing on the lives of individuals, such as women of color, who are excluded from 'single-issue' frameworks.".
48. Darren Lenard Hutchinson, New Complexity Theories: From Theoretical Innovation to Doctrinal Reform, 71 UMKC L. REV. 431+435-436 (2002).
49. For further discussion, see infra Section II.B. 21.
50. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259+1297-1298, 1307-08 (2000).
51. For further discussion infra Section II.B.
52. Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993) (rejecting the claim that termination for speaking Spanish constituted national origin discrimination under Title VII);
53. Fragante v. City & Cnty. of Honolulu, 888 F.2d 591, 596, 599 (9th Cir. 1989) (finding that "[a]ccent and national origin are obviously inextricably intertwined in many cases" but rejecting the plaintiff's employment discrimination claim because of the "effect of his Filipino accent on his ability to communicate");.
54. Korpai v. A.W. Zengeler's Grande Cleaners, Inc., No. 85 C 9130, 1987 WL 20428, at 2 (N.D. Ill. Nov. 24, 1987) ("Discrimination based on foreign immigration and speech with an accent is not discrimination based upon Hungarian ancestry or Hungarian characteristics, for purposes of Section 1981.").
55. Carino v. Univ. of Okla. Bd. of Regents, 750 F.2d 815 (10th Cir. 1984) (upholding a determination that the plaintiff suffered discrimination because of his national origin and related accent).
56. Christopher David Ruiz Cameron, How the García Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 10 LA RAZA L.J. 261 (1998) (discussing the relationship of accent discrimination to race- and ethnicity-based discrimination);
57. Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 YALE L.J. 1329 (1991) (analyzing accent discrimination and the related application of antidiscrimination law).
58. For further discussion of identity performance theory infra notes 124-139.
59. Sturm, supra note 18, at 460;
60. Tristin K. Green, Work Culture and Discrimination, 93 CALIF. L. REV. 623+665 (2005) [hereinafter Green, Work Culture] ("[D]iscriminatory work cultures are too complex and too intertwined with valuable social relations to be easily regulated through judicial pronouncements and direct regulation of relational behavior.").
61. Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 VAND. L. REV. 849 (2007) (describing and defending structural discrimination theory).
62. supra note 15.
63. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978). Fuller defined adjudication as involving the "authoritative determination of questions raised by claims of right and accusations of guilt" through the consideration of "proofs and reasoned arguments,"
64. id. at 368-69, and then focused on addressing adjudication's limitations, particularly in circumstances that required, for proper resolution, a managerial-style analysis of polycentric and dynamic conflicts. To the extent that claims require these types of analyses and judgments, which do not rest on proofs and reasoned argument, Fuller argued that they demand more than reasonably can be asked of an adjudicator.
65. Id. at 370-71.
66. RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 59-78 (1992) (objecting to discrimination laws because they interfere with the efficiencies gained in a homogeneous work environment);
67. John J. Donohue, Essay, Is Title VII Efficient?, 134 U. PA. L. REV. 1411 (1986) (maintaining that Title VII's ban on discrimination may maximize social welfare);
68. Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97+57 (2009) (discussing disagreements regarding whether discrimination law prohibits the types of employer conduct captured by structural discrimination theories);
69. Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 EMORY L.J. 1053+059 (2009) ("The unconscious bias discourse is as likely to subvert as to further the goal of substantive racial justice.").
70. infra Section II.B.
71. Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L. REV. 2479+481 (1994) (describing the difficulty courts have in giving an account of complex cases "that would help integrate such claims into the mainstream of Title VII doctrine");
72. Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. CHI. L. REV. 797+00 (2010) (arguing that discrimination law does not reach employers who design compensation packages to "avoid hiring individuals from [a] disfavored group");
73. Susan Sturm, Equality and the Forms of Justice, 58 U. MIAMI L. REV. 51+4 (2003) ("[A]ny theory of discrimination that is sufficiently clear to provide guidance... cannot deal adequately with the varied, complex, and shifting dynamics and normative meaning of group-based discrimination.");
74. Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 VA. L. REV. 1893+900 (2009) (maintaining, with respect to unconscious discrimination, that "[a]ggressive legal strategies" may "have a negative effect on people's internalization of nondiscrimination norms" and exacerbate rather than "reduc[e] undesirable behaviors").
75. In addition, some second-generation theory has challenged the primacy of litigation as a means for redressing discrimination while also recognizing the value of courts working collaboratively with employers to restructure workplaces.
76. Sturm, supra note 18, at 522-23 (recognizing the potential for achieving results through litigation where employers and courts engage collaboratively in problem solving);
77. Susan Sturm, Law's Role in Addressing Complex Discrimination, in HANDBOOK OF EMPLOYMENT DISCRIMINATION RESEARCH: RIGHTS AND REALITIES 35 (Laura Beth Nielsen & Robert L. Nelson, eds., 2005) (analyzing the role of courts in elaborating norms and working with nonlegal actors to shape responses to complex discrimination). Others, however, have moved in directions more attenuated from law, focusing primarily on redressing social norms around identity and discrimination by restructuring extralegal conversations.
78. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS (2006).
79. infra Part V. Within the employment arena, comparators are likely also appealing because their limited reach enhances the preservation of employer autonomy in workplace decisionmaking, which has proven to be an enduring value in this area.
80. infra notes 215-217 and accompanying text.
81. Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 COLUM. L. REV. 1955 (2006) [hereinafter Goldberg, Constitutional Tipping Points];
82. Suzanne B. Goldberg, On Making Anti-Essentialist and Social Constructionist Arguments in Court, 81 OR. L. REV. 629 (2002) [hereinafter Goldberg, Anti-Essentialist and Social Constructionist Arguments].
83. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992). Yet, as will be shown below and has been addressed more generally in the context of the rules/standards debate, rule-like measures and frameworks are typically embedded with unarticulated standard-like assumptions, reinforcing the point that a binary distinction between rules and standards often masks the mutually constitutive nature of those categories.
84. Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992) (showing the malleability of rule and standard characterizations).
85. Devon W. Carbado, The Ties that Bind, 19 CHICANO-LATINO L. REV. 283+94 (1998) ("[O]ur identities are, on some level, unmanageable-fluid, contingent, and contestable.").
86. For example, a comparator framework focuses on capturing formal equality violations but misses the antisubordination theorists' concern with workplace conditions that are formally equal but nonetheless exacerbate trait-related differences among employees. It will miss, for example, the particular consequences for women when an employer refuses to allow breaks or private space for breastfeeding because there are no male comparators. Likewise, an employer who regularly makes sexualized or race-related comments to all employees would not face a comparator-based claim because all employees would be subjected to the same epithets. Yet the lack of breastfeeding accommodations as well as the making of sexual or racist remarks can surely have a trait-differentiated effect on the ability of women and members of racial minorities to perform in the workplace.
87. Lucinda M. Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 COLUM. L. REV. 1118+144 (1986) ("[P]arceling out goods such as workplace benefits according to egalitarian distributive principles may not result in people's positions actually coming out equal in the end.");
88. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 128 (1989) (arguing that "neutral" norms perpetuate bias);
89. Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003 (1986) (advocating an antisubordination approach);
90. Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 63 MINN. L. REV. 1049, 1059-1061 (1978) (suggesting that the individualization of discrimination claims has undermined efforts to use discrimination law to promote distributive justice in the face of the historical practice of discriminating against a particular group);
91. Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983) (arguing for approaches to ending discrimination that emphasize substantive rather than formal or procedural equality). Specifically with respect to women in the workplace
92. Mary E. Becker, Prince Charming: Abstract Equality, 1987 SUP. CT. REV. 201+247, which observes that a framework concerned with formal equality will be unable to address job structures that clash with parenting responsibilities typically taken up by women;
93. Martha Chamallas, Mothers and Disparate Treatment: The Ghost of Martin Marietta, 44 VILL. L. REV. 337+338 (1999), which argues that "the ban on disparate treatment will not solve the work/family conflict for women who experience actual, rather than perceived, conflicts because they find that there are just not enough hours in the day."
94. Still, as Owen Fiss has observed, although "the ideal of equality... is capable of a wide range of meanings," formal equality, which he describes as the "antidiscrimination principle," has become a "mediating principle" that underlies the concept of equality in both Title VII and the Equal Protection Clause.
95. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107+108 (1976);
96. Paul Brest, The Supreme Court, 1975 Term-Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1+6 (1976) (defining the "antidiscrimination principle" as disfavoring racial classifications and arguing that other inequalities may need to be addressed by different theories and principles, including principles of economic justice).
97. The Americans with Disabilities Act, with its requirement that employers provide reasonable accommodation to employees with qualifying disabilities, is understood as an exception to this general rule.
98. This effort to reduce dependence on a flawed method for observing discrimination dovetails, in a sense, with James Greiner's recent effort to challenge the dominance of multiple regression analysis as the chief statistical technique for observing discrimination.
99. D. James Greiner, Causal Inference in Civil Rights Litigation, 122 HARV. L. REV. 533 (2008). For another approach to enhancing the value of statistical analysis in enabling comparison
100. Edward K. Cheng, A Practical Solution to the Reference Class Problem, 109 COLUM. L. REV. 2081 (2009).
101. ARISTOTLE, NICHOMACHEAN ETHICS 1131a-b (Martin Ostwald trans., The Bobbs-Merrill Co. 1962) (c. 384 B.C.E.). Aristotle also acknowledged that difficulty inhered in determining whether comparators were sufficiently like each other. There is some irony in linking Aristotle to today's antidiscrimination regime in that he was arguably more concerned with the problem of treating unlikes equally than in insuring broad-based equality. Id. ("[T]his is the source of quarrels and recriminations, when equals have and are awarded unequal shares or unequals equal shares.") (emphasis added).
102. U.S.C. § 2000e-2 (2006).
103. It does elaborate the areas in which unlawful adverse treatment might occur, including hiring and firing but also "compensation, terms, conditions, or privileges of employment."
104. Id. § 2000e-2(a).
105. Martha Minow, The Supreme Court, 1986 Term-Foreword: Justice Engendered, 101 HARV. L. REV. 10+14 (1987) (observing that "what initially may seem to be an objective stance may appear partial from another point of view").
106. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001);
107. Billingsley v. Jefferson Cnty., 953 F.2d 1351 (11th Cir. 1992) (finding sufficient evidence of race discrimination where black employees were fired for excessive absences while a white employee was only suspended for three days);
108. Bradley v. Americold Servs., No. Civ. A. 97-2161-KHV, 1997 WL 613335 (D. Kan. Sept. 8, 1997) (denying summary judgment where an employer terminated the black plaintiff for allegedly threatening harm to a coworker but only suspended a white supervisor for threatening to kill two employees).
109. Flores v. Preferred Technical Grp., 182 F.3d 512 (7th Cir. 1999) (rejecting a national origin discrimination claim where the plaintiff was terminated for breaking a work rule violated by twenty-seven other employees, and where she and her sister (who was fired for a different reason) were the only two recognizably Hispanic employees and the only two fired).
110. BLACK'S LAW DICTIONARY 847 (9th ed. 2009) (defining inference as "[a] conclusion reached by considering other facts and deducing a logical consequence from them");
111. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323 (2007) ("defining 'inference' as[, inter alia,] 'a conclusion [drawn] from known or assumed facts or statements'") (citing 16 OXFORD ENGLISH DICTIONARY 949 (2d ed. 1989) (second alteration in original)).
112. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (noting that "[t]he law often obliges finders of fact to inquire into a person's state of mind" and that "'[i]t is true that it is very difficult to prove what the state of a man's mind at a particular time is'" (quoting Edgington v. Fitzmaurice, [1885] Ch.D. 459 at 483 (Eng.))).
113. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). The Court recognized that other forms of evidence "may be relevant to any showing of pretext," including "facts as to the petitioner's treatment of respondent during his prior term of employment; petitioner's reaction, if any, to respondent's legitimate civil rights activities; and petitioner's general policy and practice with respect to minority employment.".
114. Id. at 804-05 (emphasis added). The Court added that "statistics as to petitioner's employment policy and practice may be helpful to a determination of whether petitioner's refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks.".
115. Id. at 805. But the Court also "caution[ed] that such general determinations [about discrimination patterns from statistical analysis], while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire.".
116. Id. at 805 n.19. In effect, the Court suggested, absent an admission of racial motivation from the employer, a comparator would likely be the most effective means for showing whether impermissible discrimination had occurred because it could most reliably establish that race discrimination was a proximate cause for the employer's actions. For discussion of discrimination cases in which courts have observed that actual comparators are not necessary to a discrimination claim.
117. infra Part IV.
118. Because employers typically refrain from directly linking their adverse actions to an employee's protected trait, relatively few discrimination plaintiffs can present direct evidence of discriminatory intent, meaning evidence that "'if believed, proves [the] existence of [a] fact in issue without inference or presumption.'" Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (alterations in original) (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997));.
119. id. (describing direct evidence as "'the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor" (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989))).
120. McDonnell Douglas, 411 U.S. at 802. The precise elements of the prima facie case will vary depending on the factual context of the discrimination claim. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 n.1 (11th Cir. 1993). For a discrimination claim in the context of ongoing employment, for example, courts typically require that the plaintiff establish a prima facie case by showing that "'(1) she is a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated male employees more favorably; and (4) she was qualified to do the job.'" EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)). The Supreme Court has observed, in the context of an employment discrimination case involving McDonnell Douglas burden-shifting, that the prima facie showing was "'never intended to be rigid, mechanized, or ritualistic.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Furnco. Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
121. McDonnell Douglas, 411 U.S. at 802.
122. Id. at 807;
123. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000) (explaining that discrimination can be deemed the "most likely" explanation for the employer's conduct if the employer's proffered justification is rejected).
124. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (holding that a plaintiff does not necessarily establish pretext by disproving the employer's proffered justification for its action).
125. Sullivan, supra note 3, at 194, 208 ("[S]ometimes the presence or absence of a comparator is assessed by the court in determining whether plaintiff has made out her prima facie case," but "more commonly,... the court tends to find comparators critical for pretext proof.");.
126. Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 U. COLO. L. REV. 1243, 1290-91 (2008) (observing that plaintiffs can introduce evidence of discrimination at both the prima facie and pretext stages). Of course, not each step of the sequence (prima facie case, nondiscriminatory reason, showing of pretext) is reached in every case.
127. Adebisi v. Univ. of Tenn., 341 F. App'x 111, 112 (6th Cir. 2009) (ruling that a plaintiff "failed to make a prima facie showing of... discrimination, because he failed to show that a similarly-situated, non-protected person was treated more favorably");.
128. Drake-Sims v. Burlington Coat Factory Warehouse, 330 F. App'x 795, 801 (11th Cir. 2009) (same);
129. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1119 (7th Cir. 2009) (same);
130. Lee v. Kansas City S. Ry., 574 F.3d 253, 259 (5th Cir. 2009) (describing as a prong of the prima facie case that the plaintiff must show that "he was treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class, under nearly identical circumstances");.
131. Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008) (same); Flores v. Preferred Technical Grp., 182 F.3d 512 (7th Cir. 1999) ("The linchpin of the plaintiff's prima facie case is evidence of disparate treatment between members of the plaintiff's protected class and nonmembers.").
132. King v. Hardesty, 517 F.3d 1049, 1063 (8th Cir. 2008) (describing and applying the comparator requirement in the context of the pretext evaluation);
133. Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006) (finding that the plaintiff had established a prima face case of race discrimination but lacked an adequate comparator to demonstrate pretext);
134. Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (same as King). In rejecting the position that a discrimination plaintiff must produce an actual comparator as part of the prima facie case, the Second Circuit criticized "the grotesque scenario where an employer can effectively immunize itself from suit if it is so thorough in its discrimination that all similarly situated employees are victimized." Abdu-Brisson v. Delta Airlines Inc., 239 F.3d 456, 467 (2d Cir. 2001).
135. supra note 8.
136. In a race discrimination case, the Eighth Circuit identified differing demands for comparators within its own circuit, which ranged from a strict comparator demand at the prima facie stage of the burden-shifting analysis to a "low threshold" demand at that stage, accompanied by more rigorous review at the pretext stage.
137. Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 851 (8th Cir. 2005). Opting for the low threshold requirement, the court explained that "[u]sing a more rigorous standard at the prima facie stage would 'conflate the prima facie case with the ultimate issue of discrimination,' thereby effectively eliminating the burden-shifting framework the Supreme Court has directed us to use." Id. at 852 (quoting Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994)).
138. Ernest F. Lidge, The Courts' Misuse of the Similarly Situated Concept in Employment Discrimination Law, 67 MO. L. REV. 831+839 (2002), which argues that requiring comparative evidence at the prima facie stage "violates the statutory language and also has a number of other problems";
139. Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV. 2229+2292 (1995), which maintains that "[s]erious problems inhere in requiring the plaintiff to produce comparative data at the prima facie stage of the case."
140. Malamud, supra note 51, at 2291 (pointing out that the McDonnell Douglass framework does not "by its terms" require comparative evidence).
141. In contrast to the McDonnell Douglas analysis, where the individual plaintiff bears the burden of persuasion throughout the adjudication process, in a mixed-motive case, once the individual has established the employer's reliance on a protected trait, liability attaches and the employee will recover damages unless the employer can show persuasively that it would have "taken the same action in the absence of the impermissible motivating factor." 42.
142. U.S.C. § 2000e-5(g)(2)(B) (2006). In that case, the employee can still obtain certain kinds of declaratory or injunctive relief as well as attorney's fees and costs. Id. § 2000e-5(g)(2)(B)(i).
143. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) ("[Comparative evidence] may suffice, at least in some circumstances, to show pretext."); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (assuming that a comparator would be useful to show that the employer had acted "because of" the plaintiff's age); Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989) ("[A litigant] might seek to demonstrate that [the employer's] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position."). The comparator heuristic is used to observe discrimination in other contexts as well. With respect to the use of peremptory strikes of jurors during voir dire, for example, the Court has struggled to determine how best to see whether discriminatory intent, rather than permissible instinct, motivated the strike. In its most recent decision in this area, the Court reinforced the value of comparison in illuminating whether race discrimination had occurred in the use of a state's peremptory strikes in a capital murder case. The Court first considered statistics showing the disproportionately high use of peremptory strikes against black potential jurors and then observed that [m]ore powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination.
144. Miller-El v. Dretke, 545 U.S. 231, 241 (2005).
145. Gossett v. Okla. ex rel Bd. of Regents for Langston Univ., 245 F.3d 1172, 1177 (10th Cir. 2001) (explaining, in a sex discrimination suit brought by a man who had been involuntarily withdrawn from a state university nursing program, that "evidence that the defendant treated the plaintiff differently from others who were similarly situated... is especially relevant to a showing of pretext");.
146. Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1230 (10th Cir. 2000) (noting that a plaintiff seeking to show discriminatory conduct by the defendant "often does so by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness"). As the Massachusetts Supreme Judicial Court put the point, similarly situated comparators are "'usually the most probative means of proving that an adverse action was taken for discriminatory reasons,'" even if they are "'not absolutely necessary.'" Trs. of Health & Hosps. v. Mass. Comm'n Against Discrimination, 871 N.E.2d 444, 451 (Mass. 2007) (quoting Trs. of Health & Hosps. v. Mass. Comm'n Against Discrimination, 839 N.E.2d 861, 866 (Mass. App. Ct. 2005)).
147. Sullivan, supra note 3, at 202. Sullivan adds: The reality on the ground is that discrimination cases today increasingly turn not on whether the plaintiff has proven her prima facie case or established that the "legitimate nondiscriminatory reason" is a pretext for discrimination (although the courts continue to invoke the McDonnell Douglas mantra), but rather on whether the plaintiff has identified a suitable "comparator" who was treated more favorably than she.
148. Id. at 193;
149. Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV. 109+181 n.270 (2007) ("The most common form of evidence offered in [cases based on unconscious discrimination or bias] is comparative evidence....");
150. Lidge, supra note 51, at 831-32 (describing the use of a comparator as "[a] common way of proving" discrimination on account of a protected characteristic). Treatises take this position as well.
151. 1 LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 8D.04 n.3 (2d ed. 2009) ("The most common way of demonstrating that an employer's explanation for an adverse employment action is pretextual is to show that similarly situated persons of a different race or sex received more favorable treatment.");.
152. id. § 8.02[6] (explaining that where the plaintiff alleges failure to hire based on discrimination, the most common method of making a prima facie case "is to show that the employer subsequently hired someone for the position, and that the hired person had equal or lesser qualifications compared to those of the plaintiff").
153. Justices Thomas and Kennedy have expressed such a view. See supra notes 6-7 and accompanying text.
154. Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (finding that the plaintiff could not sustain her discrimination claims because she "[could not] show that similarly situated employees of other races were treated better");.
155. Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000) (holding that to establish a prima facie case for discriminatory discharge, the plaintiff must show that "she was discharged while other, similarly-situated employees who were not members of the protected class were treated more favorably");.
156. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (ruling that the plaintiff "did not produce evidence sufficient to support a reasonable inference that her termination was the result of race discrimination" because she failed to identify satisfactory comparators);.
157. LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 47.05 (2d ed. 2009) (stating that, in the context of pregnancy discrimination, "if the employee cannot show that she was in fact treated differently from similarly situated non-pregnant employees, her claim will fail");.
158. LEX K. LARSON, LABOR AND EMPLOYMENT LAW § 54.02[6] (2010) (observing that where a plaintiff alleges discrimination in hiring, "failure of the plaintiff to present evidence of comparative qualifications of persons subsequently hired was sometimes viewed as fatal to a plaintiff's prima facie case").
159. LEX K. LARSON, EMPLOYMENT DISCRIMINATION, § 47D.05 (2d ed. 2009) (analyzing EEOC v. Nw. Mem'l Hosp., 858 F. Supp. 759 (N.D. Ill. 1994), where a "plaintiff's failure to provide comparative evidence was not fatal to her case").
160. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (emphasis added).
161. Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 545-46 (4th Cir. 2003) (maintaining that although comparative evidence may be "helpful," a plaintiff "is not required as a matter of law to point to a similarly situated white comparator in order to succeed on a race discrimination claim").
162. I leave to the following Parts consideration of the impact of the comparator approach on the meaning of discrimination.
163. supra notes 18, 26 and accompanying text.
164. In Price Waterhouse v. Hopkins, Justice O'Connor wrote that "stray remarks in the workplace,... statements by nondecisiomakers, and statements by decisionmakers unrelated to the decisional process itself" should not be treated as proving the connection between an employer's acts and the protected trait. 490 U.S. 228, 277 (1989) (O'Connor, J., concurring);.
165. id. at 251 (majority opinion) ("Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision.").
166. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008). In the case, which was brought under the Fair Housing Act, neighbors and city commissioners had made statements about not wanting recovering drug users in their town, but the court deemed the statements irrelevant because of the absence of a comparator.
167. Id.
168. Sullivan, supra note 3, at 216 n.93.
169. This compartmentalization effect is even more notable because it runs contrary to the Court's suggestion that all evidence must be taken together in evaluating a discrimination claim.
170. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148-49 (2000) (identifying as relevant, inter alia, the "strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case").
171. Catherine Albiston et al., Ten Lessons for Practitioners About Family Responsibilities Discrimination and Stereotyping Evidence, 59 HASTINGS L.J. 1285, 1293-1296 (2008). These authors argue that "[s]ocial science research has shown the value of 'stray remarks' as providing a window into the hidden biases in the workplace,"
172. id. at 1293, and that "[a]s social science research mounts and more courts acknowledge that '[c]ontext matters'-indeed it matters a lot-in these cases, the 'stray remarks' doctrine may be cast aside,".
173. id. at 1296 (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006)).
174. For example, in Holifield v. Reno, the court stated: Holifield has failed to produce sufficient affirmative evidence to establish that the non-minority employees with whom he compares his treatment were similarly situated in all aspects, or that their conduct was of comparable seriousness to the conduct for which he was discharged. Having failed to meet his burden of proving he was similarly situated to a more favorably treated employee, Holifield has not established a prima facie case.
175. 115 F.3d 1555, 1563 (11th Cir. 1997);
176. LaFary v. Rogers Grp., Inc., 591 F.3d 903, 909 (7th Cir. 2010) (finding that a coworker who took leave that was comparable to the leave taken by the pregnancy discrimination plaintiff was not similarly situated based on the employer's needs at the time when the coworker was rehired but the plaintiff was not);.
177. Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009) (rejecting an age discrimination claim for lack of an adequate comparator while observing that "[a]lthough the 'similarly situated' concept is a flexible one, the comparators must be similar enough that differences in their treatment cannot be explained by other variables, such as distinctions in their roles or performance histories" (citing Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)));.
178. White v. Fla. Dep't of Highway Safety & Motor Vehicles, 343 F. App'x 532, 535 (11th Cir. 2009) ("[W]hile [the plaintiff] may have shown that some non-minority individuals had isolated issues in their backgrounds, he failed to identify any such individual that had the same number of problems in [as] many areas as he had." (third alteration in original) (internal citation omitted));.
179. Lewis v. Metro. Atlanta Rapid Transit Auth., 343 F. App'x 450, 454 (11th Cir. 2009) (rejecting a comparator in a race discrimination case and stating that "[w]e 'require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges'") (quoting Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006)).
180. Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997). Aramburu held that "'[s]imilarly situated employees,'" for the purpose of showing disparate treatment in employee discipline, "'are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.'" Id. at 1404 (quoting Wilson v. Utica Park Clinic, Inc., 76 F.3d 394, No. 95-5060, 1996 WL 50462, at 1 (10th Cir. Feb. 7, 1996)). The Sixth Circuit has stated: [T]o be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. Hollins v. Atl. Co., 188 F.3d 652, 659 (6th Cir. 1999) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). However, in its recent decision in Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008), the Court declined to embrace a categorical rule regarding whether evidence of discrimination had to come from comparators with the same supervisor.
181. For example, in addressing a sex discrimination claim by a female secretary, the Second Circuit wrote, "Given their quite different positions, no rational inference of disparate treatment on the basis of gender could be drawn from evidence that [two male employees] were not given the secretarial-type tasks assigned to" the female plaintiff. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 291 (2d Cir. 1998).
182. Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (holding that, in the disciplinary context, comparators must "'have been subject to the same standards and [must] have engaged in the same conduct without... differentiating or mitigating circumstances'" (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998))).
183. Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996).
184. Tricia M. Beckles, Comment, Class of One: Are Employment Discrimination Plaintiffs at an Insurmountable Disadvantage if They Have No "Similarly Situated" Comparators?, 10 U. PA. J. BUS. & EMP. L. 459+470-472 (2008) (reviewing the standards set out in several circuits).
185. As the Sixth Circuit wrote in the context of a disparate discipline complaint: [T]he "comparables" [must be] similarly-situated in all respects.... [They] must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.
186. th Cir. Unit B 1982))).
187. In the separate but related context of whether comparative proof is sufficiently probative to show that discrimination accounted for the selection of someone other than the plaintiff, the Supreme Court rejected a lower court demand that the difference between comparators must be "'so apparent as virtually to jump off the page and slap you in the face.'".
188. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006) (quoting Ash v. Tyson Foods, Inc., 129 F. App'x 529, 533 (11th Cir. 2005)). At the same time, the Court endorsed other demanding characterizations of the comparator requirement.
189. id. at 457-58 (citing Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004) (holding that "disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question");.
190. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) (holding that qualifications evidence alone could establish pretext where the plaintiff's qualifications are "clearly superior" to those of the candidate selected); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc) (concluding that pretext can be inferred if "a reasonable employer would have found the plaintiff to be significantly better qualified for the job"). For characterizations of the comparator requirement after Ash,.
191. supra note 66.
192. FREDERICK WINSLOW TAYLOR, SHOP MANAGEMENT 50 (1911).
193. Id. at 34.
194. KATHERINE V.W. STONE, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE 165 (2004);
195. Jim Pope, Next Wave Organizing and the Shift to a New Paradigm of Labor Law, 50 N.Y.L. SCH. L. REV. 515+516 (2005-2006) (describing "[f]lexibility and mobility" as "hav[ing] replaced predictability and stability as core values in business organization").
196. STONE, supra note 75, at 165-66.
197. For discussion of the particular challenges that sample size concerns present for individuals who bring discrimination claims based on more than one protected characteristic
198. infra notes 118-123 and accompanying text. Even in less complex, first-generation cases, samplesize issues can be impediments for individuals bringing discrimination claims.
199. Judge v. Marsh, 649 F. Supp. 770, 780 (D.D.C. 1986). In a Seventh Circuit case, Judge Posner elaborated on an aspect of this sample size issue in a case brought by black female students who argued that they were punished more harshly for hazing sorority pledges than were comparable white students, where he rejected the proffered comparators as inadequate. He observed: In a large number of dissimilar cases, if there were reason to think the dissimilarities were randomly distributed and therefore canceled out, an inference of discrimination might be drawn. And likewise in a small sample if the cases were identical except for a racial difference. But in a very small sample of dissimilar cases, the presence of a racial difference does not permit an inference of discrimination; there are too many other differences, and in so small a sample no basis for thinking they cancel out.
200. Williams v. Wendler, 530 F.3d 584, 588-89 (7th Cir. 2008). Courts are often skeptical of data drawn from small samples.
201. Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1076 (9th Cir. 1986) ("The problem with [a small sample size] is that slight changes in the data can drastically alter appearances.");
202. Contreras v. City of L.A., 656 F.2d 1267, 1273 n.4 (9th Cir. 1981) ("Statistics are not trustworthy when minor numerical variations produce significant percentage fluctuations.");
203. Morita v. S. Cal. Permanente Med. Grp., 541 F.2d 217, 220 (9th Cir. 1976) ("'[S]tatistical evidence derived from an extremely small universe... has little predictive value and must be disregarded.'" (quoting Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975))).
204. N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 584-87 (1979); see also Mayor of Phila. v. Educ. Equal. League, 415 U.S. 605, 620-21 (1974) (criticizing "the simplistic ercentage comparisons" used by the court of appeals as "lack[ing] real meaning in the context of [the] case" and affirming "the District Court's concern for the smallness of the sample").
205. For additional discussion of intersectionality theory, see infra notes 112-123 and accompanying text.
206. Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997) ("[There] are only a limited number of potential 'similarly situated employees' when higher level supervisory positions for medical doctors are involved.").
207. Beckles, supra note 70, at 472.
208. Martha S. West, Gender Bias in Academic Robes: The Law's Failure To Protect Women Faculty, 67 TEMP. L. REV. 67 (1994) (analyzing the ways in which federal discrimination laws have failed to protect women faculty members from discrimination in higher education institutions).
209. Sylva-Kalonji v. Bd. of Sch. Comm'rs, No. 08-0207-KD, 2009 WL 1418808, at 6 (S.D. Ala. May 20, 2009) (finding a proposed comparator inadequate where the plaintiff, a data clerk, and the proposed comparator each performed "unique duties"). But see Jackson v. FedEx Corporate Servs., Inc., 518 F.3d 388, 396-97 (6th Cir. 2008) (finding the failure to identify an identically situated comparator not fatal to Title VII claim where the plaintiff worked in a "unique position").
210. Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 467 (2d Cir. 2001). In that case, the court found that former Pan Am pilots who joined Delta Airlines had made out a prima facie case of age discrimination, even though they had no comparator pilots, but ultimately found that the Pan Am pilots failed to rebut the nondiscriminatory reasons offered by the airline for their action. On the comparator point, the court wrote: While Delta is a long way from the days when it had only a single employee, the 488 Plaintiffs in this case find themselves in a similar conundrum: they are in a class all by themselves. Because all the Pan Am pilots hired by Delta were subjected to the same three employment terms challenged in this action, and because the Pan Am pilots differed materially from the pre-APA Delta pilots in terms of their airline of origin and career expectations, there are no Delta employees similarly situated to Plaintiffs who did not suffer the adverse employment actions.
211. Id. at 467-68.
212. Troupe v. May Dep't Stores Co., 20 F.3d 734, 738 (7th Cir. 1994) (noting that the plaintiff had not presented a comparator to substantiate her discrimination claim).
213. Id.
214. Id. at 739.
215. In re Carnegie Ctr. Assocs., 129 F.3d 290, 297 (3d Cir. 1997).
216. As noted earlier and discussed in depth below, see infra Section IV.A, comparators are typically not required for sexual harassment claims, so it is possible that a claim of that sort would be recognized even in a homogeneous environment.
217. MARIA CHARLES & DAVID B. GRUSKY, OCCUPATIONAL GHETTOS: THE WORLDWIDE SEGREGATION OF WOMEN AND MEN (2004).
218. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 291 (2d Cir. 1998). As Vicki Schultz has explained in exploring the way that "lack of interest" arguments have been used to justify sex-based differences in employment, a homogeneous workplace does not necessarily indicate the absence of troubling gender bias.
219. Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 HARV. L. REV. 1749 (1990).
220. Galdieri-Ambrosini, 136 F.3d at 291.
221. Hess-Watson v. Potter, No. Civ.A. 703CV00389, 2004 WL 34833, at &z.ast;2 (W.D. Va. Jan. 4, 2004);
222. Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1086 (3d Cir. 1996) (stating that there would be insufficient evidence of gender discrimination against a male employee who was denied a promotion that was subsequently awarded to a female employee where "there is evidence that the decisionmaker was a man and that the great majority of the employees in the job category at issue were men"). But see Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1040 (8th Cir. 2010) (denying summary judgment in a sex discrimination case where sex-stereotyping remarks had been made but the plaintiff-employee lacked a male comparator).
223. Adeniji v. Admin. for Children Servs., 43 F. Supp. 2d 407, 426 n.7 (S.D.N.Y. 1999) (citation omitted);
224. Nieto v. L&H Packing Co., 108 F.3d 621, 623-24 (5th Cir. 1997) (treating the fact that eighty-eight percent of the defendant's workforce were minorities as evidence against the plaintiff's race discrimination claim).
225. Legrand v. Trs. of Univ. of Ark., 821 F.2d 478, 480 (8th Cir. 1987) (reversing as legal error a district court ruling that plaintiffs had failed to establish a prima facie case because "the overwhelming majority of employees in the Physical Plant is black").
226. These cases, which present some of the most interesting questions related to the role of the comparator heuristic, are also discussed below. See infra notes 223-225 and accompanying text.
227. 417 U.S. 484 (1974).
228. Id. at 496 n.20. And again: "There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not."
229. Id. at 496-97.
230. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 135 (1976) (quoting Geduldig, 417 U.S. at 496 n.20).
231. AT&T Corp. v. Hulteen, 129 S. Ct. 1962, 1970 (2009) (quoting Gen. Elec. Co., 429 U.S. at 136).
232. Congress passed the Pregnancy Discrimination Act in 1978, expanding the definition of "sex" in Title VII of the Civil Rights Act of 1964 to include unequal treatment "because of or on the basis of pregnancy, childbirth, or related medical conditions." Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k) (2006)).
233. Gen. Elec. Co., 429 U.S. at 149 (Brennan, J., dissenting) ("[I]n reaching its conclusion that a showing of purposeful discrimination has not been made... the Court simply disregards a history of General Electric practices that have served to undercut the employment opportunities of women who become pregnant while employed.").
234. Katherine A. Macfarlane, Derungs v. Wal-Mart Stores: Another Door Shut-A Federal Interpretation Excluding Breastfeeding from the Scope of a State's Sex Discrimination Protection, 38 LOY. L.A. L. REV. 2319+2322 (2005) ("[T]he Sixth Circuit's analysis... stymies the natural expansion of sex discrimination protection.");
235. Elizabeth Hildebrand Matherne, The Lactating Angel or Activist? Public Breastfeeding as Symbolic Speech, 15 MICH. J. GENDER & L. 121+133-134 (2008) (arguing that the Sixth Circuit's decision "leaves breastfeeding mothers vulnerable in their everyday lives and pushes them back into the home by making the world so uncomfortable and full of potential confrontations");
236. Brianne Whelan, For Crying Out Loud: Ohio's Legal Battle with Public Breastfeeding and Hope for the Future, 13 AM. U. J. GENDER SOC. POL'Y & L. 669, 673-674, 678 n.44 (2005) (analyzing an Ohio bill, H.B. 554, 125th Gen. Assem., Reg. Sess. (Ohio 2004), proposed in response to Derungs, that would allow a "mother ... to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted").
237. Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428 (6th Cir. 2004).
238. Id. at 437.
239. Id.
240. Id. at 439 (emphasis added) (quoting Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305, 310 (S.D.N.Y. 1999)).
241. Id. (emphasis added).
242. While these cases involving discrimination claims because of a particular aspect of the lives of many women, such as reproduction or childcare, could fit within the discussion of second-generation claims as well, I include them here because they were framed as relatively straightforward discrimination cases yet were barred, nonetheless, by the comparator demand.
243. Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1 (1995) (questioning whether the recognition of differences between men and women related to reproductive capacity as categorical overstates the difference between socially constructed and biologically rooted gendered distinctions).
244. The last Part of this Article returns to this disconnect to discuss alternate methodologies that have the potential to be inclusive of the thicker, second-generation conceptualizations of discrimination.
245. Even for those who would not characterize the circumstances described below as involving discrimination, it is useful to see the similarities in the ways in which the comparator demand affects consideration of both these and first-generation types of claims. 112. 400 U.S. 542 (1971). In Martin Marietta, there was a clear comparator group of men with small children whose applications were not barred by the challenged rule.
246. Id. at 544.
247. The challenge here is thus somewhat similar to the challenge for the "unique" Mrs. Troupe in the pregnancy-leave discrimination case described above.
248. supra text accompanying notes 87-89.
249. Coleman v. B-G Maint. Mgmt., Inc., 108 F.3d 1199 (10th Cir. 1997).
250. Id. at 1204. As the court also explained, in a "plus"-type case, "although the protected class need not include all women, the plaintiff must still prove that the subclass of women was unfavorably treated as compared to the corresponding subclass of men.".
251. Id. at 1203.
252. Id. at 1204.
253. Id. at 1205.
254. Vasquez v. Cnty. of L.A., 349 F.3d 634, 653-55 (9th Cir. 2003) (Ferguson, J., dissenting) (stating that a comment about the plaintiff having a "typical Hispanic macho attitude" and others like it showed "particularly offensive stereotypes about Hispanics as lazy, and about Hispanic males as aggressive and domineering" and finding that the remarks and other conduct stated a claim "as to whether [the plaintiff] was subjected to an abusive workplace because of his race and his sex");.
255. Anthony v. Cnty. of Sacramento, 898 F. Supp. 1435, 1445 (E.D. Cal. 1995) (denying defendants' summary judgment motion and stating that "the epithet 'black bitch' cannot be designated exclusively as either racist or sexist");.
256. Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981) (finding that African-American women did not constitute a discrete class for the purposes of a Title VII suit);
257. DeGraffenreid v. Gen. Motors Assembly Div., 413 F. Supp. 142, 143 (E.D. Mo. 1976) ("[T]his lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both."), aff'd in part, rev'd in part, 558 F.2d 480 (8th Cir. 1977).
258. Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994);
259. id. ("[T]he attempt to bisect a person's identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.");
260. Jefferies v. Harris Cnty. Cmty. Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("The essence of Jefferies' argument is that an employer should not escape from liability for discrimination against black females by a showing that it does not discriminate against blacks and that it does not discriminate against females.");.
261. Kotkin, supra note 15, at 1475 (describing Lam as "one of very few 'plus' claims to have met success").
262. Kotkin, supra note 15, at 1491-92; cf. Philipsen v. Univ. of Mich. Bd. of Regents, No. 06- CV-11977-DT, 2007 WL 907822, at 6 (E.D. Mich. Mar. 22, 2007) ("Courts are split ... over whether the proper comparator may only include a person outside of the protected class who has the same 'plus characteristic' as the plaintiff (in this case, a male with young children) or whether the comparator may include any person (male or female) who lacks the 'plus' characteristic (in this case, a female without young children).").
263. Jeffers v. Thompson, 264 F. Supp. 2d 314, 327 (D. Md. 2003).
264. Kotkin, supra note 15, at 1446 & n.22 (discussing sources).
265. Id. at 1462.
266. Carbado & Gulati, supra note 21, at 1307; see also Green, Work Culture, supra note 23, at 628 ("[S]etting behavioral expectations along a white, male norm imposes extra performance costs on outsiders and forces reconstruction of identity.");
267. Gowri Ramachandran, Intersectionality as "Catch 22": Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 ALB. L. REV. 299+300 (2005) ("[N]egotiating multiple identity performance demands simultaneously often places intersectionals in a uniquely restricted situation, one that has been referred to in other contexts as a 'catch 22' or 'double bind.'");
268. Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134, 1199-1230, 1269 (2004) (arguing that interpretations of Title VII that "fail to account for the role that volitional behavior or race/ethnicity performance plays in defining individual identity" leave courts unable to reach "equitable resolution" of discrimination claims);
269. Laura Morgan Roberts & Darryl D. Roberts, Testing the Limits of Antidiscrimination Law: The Business, Legal, and Ethical Ramifications of Cultural Profiling at Work, 14 DUKE J. GENDER L. & POL'Y 369, 378-36 (2007) (discussing "[i]dentity [p]erformance as a [s]trategic [r]esponse to [w]orkplace [c]ultural [p]rofiling");
270. Kimberly A. Yuracko, Trait Discrimination as Race Discrimination: An Argument About Assimilation, 74 GEO. WASH. L. REV. 365+69 (2006) ("This paper seeks to begin the process of defining the ways in which employers use trait discrimination so as to begin a more useful normative discussion about when, if ever, antidiscrimination law should prohibit such discrimination.").
271. Carbado & Gulati, supra note 21, at 1307.
272. Id. at 1299-1307.
273. Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701, 714-79 (2001).
274. Smith v. Planas, 975 F. Supp. 303, 308 (S.D.N.Y. 1997) ("Five of the seven individuals identified by Plaintiff as having received higher-paying assignments were black-members of Plaintiff's protected class. As such, Plaintiff has failed to make out a prima facie case of race discrimination because he cannot show that the adverse employment action taken against him occurred in circumstances giving rise to an inference of race discrimination.");.
275. Samuels v. N.Y. State Dep't of Corr. Servs., No. 94-CV-8645, 1997 WL 253209, at 5 (S.D.N.Y. May 14, 1997) (finding that an African-American woman failed to articulate a prima facie case for race discrimination because, as two of her alleged comparators were African-American men, she "[could not] show that the adverse employment action taken against her ... occurred in circumstances giving rise to an inference of race discrimination").
276. Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000) ("[Because] Title VII's principal focus is on protecting individuals, rather than a protected class as a whole, an employer may not escape liability ... simply because it can prove it treated other members of the employee's group favorably.").
277. 527 F. Supp. 229 (S.D.N.Y. 1981). Rogers argued that the grooming policy "discriminate[d] against her as a woman, and more specifically as a black woman."
278. Id. at 231;
279. Id. At 231-32 (quoting Rogers's contention that the cornrow style "'has been, historically, a fashion and style adopted by Black American women'"). Scores of articles have analyzed the Rogers decision and the racial nature of the airline's selective hairstyle restriction.
280. Paulette Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365;
281. Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 GEO. L.J. 1079 (2010).
282. Rogers, 527 F. Supp. at 232.
283. Tavora v. N.Y. Mercantile Exch., 101 F.3d 907, 908-09 (2d Cir. 1996) (citing numerous cases to support the conclusion that sex-based hair length rules do not violate sex discrimination prohibitions); Pitts v. Wild Adventures, No. 7:06-CV-62-HL, 2008 WL 1899306, at 6 (M.D. Ga. Apr. 25, 2008) (finding that a theme park employer's ban on dreadlocks and cornrows did not amount to race discrimination in part because "the policy applies to all races and there is no evidence that the policy was enforced only against African-Americans");.
284. Austin v. Wal-Mart Stores, Inc., 20 F. Supp. 2d 1254, 1257 n.4 (N.D. Ind. 1998) (citing Rogers to sustain store's sex-based hair length rules);
285. Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc) (sustaining sex-based grooming code restrictions against a sex discrimination claim); Austin, 20 F. Supp. 2d at 1256 (holding, with respect to a grooming code, that "discrimination based on factors of personal preference" does "not necessarily restrict employment opportunities and thus" is "not forbidden").
286. Eatman v. United Parcel Serv., 194 F. Supp. 2d 256, 259 (S.D.N.Y. 2002). Thanks to Kimberly Yuracko for discussion of Eatman and some of the other contemporary identity performance cases noted here.
287. Id. at 261, 264.
288. Id. at 265.
289. Miller v. CCC Info. Sys., Inc., No. 95 C 6612, 1996 WL 480370, at 1 (N.D. Ill. Aug. 22, 1996). Miller had argued that the hairstyle and clothing comments "were 'racial' because white people do not wear their hair in the same style." Id. at 3.
290. Austin, 20 F. Supp. 2d at 1256.
291. Eatman, 194 F. Supp. 2d at 264.
292. Id.;
293. id. at 265 ("Locked hair ... is not so closely associated with black people that a racially neutral comment denigrating it can reasonably be understood as a reflection of discriminatory animus ...").
294. Rogers v. Am. Airlines, 527 F. Supp. 229, 232 (S.D.N.Y. 1981).
295. supra note 23 and accompanying text.
296. Sturm, supra note 18, at 469 (explaining that the complexity of these claims "lies in the multiple conceptions and causes of the harm, the interactive and contextual character of the injury, the blurriness of the boundaries between legitimate and wrongful conduct, and the structural and interactive requirements of an effective remedy").
297. supra note 72.
298. Cf. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509 (3d Cir. 1992) (rejecting a claim that a law firm's assignment system had disadvantaged the plaintiff because of sex rather than because of her academic credentials);.
299. David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 CALIF. L. REV. 493+585 (1996) (arguing that "[n]either disparate treatment nor disparate impact analysis is well suited to rooting out the kind of adverse employment practices" related to assignments, training, and mentoring that are critical to advancement within law firms);
300. S. Elizabeth Foster, Comment, The Glass Ceiling in the Legal Profession: Why Do Law Firms Have So Few Female Partners?, 42 UCLA L. REV. 1631+1642-1643 (1995) (discussing the "exclusionary and discriminatory behavior" in law firms that results in women's diminished opportunities for advancement).
301. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc) (certifying a sex discrimination class action based in part on a determination that the employer's promotion practices could have facilitated sex-based decisionmaking) cert. granted, 79 U.S.L.W. 3128 (U.S. Dec. 6, 2010) (No. 10-277);.
302. Butler v. Home Depot, Inc., Nos. C-94-4335 SI & C-95-2182 SI, 1997 WL 605754, at 7 (N.D. Cal. Aug. 29, 1997) (sustaining certification of a sex discrimination class action challenging hiring and promotion practices and quoting expert testimony explaining that "[i]n the context of a male-dominated culture, relying on highly arbitrary assessments of subjective hiring criteria allows stereotypes to influence hiring decisions").
303. EEOC v. Chi. Miniature Lamp Works, 947 F.2d 292, 305 (7th Cir. 1991) (rejecting a race discrimination in hiring claim and holding that "[w]ithout probative evidence of discriminatory intent, however, Miniature is not liable when it passively relies on the natural flow of applicants for its entry-level positions");.
304. EEOC v. Wal-Mart Stores, Inc., No. 6:01-CV-339, 2010 WL 583681, at 3 (E.D. Ky. Feb. 16, 2010) (excluding expert witness testimony regarding the link between an employer's practices and sex discrimination on the grounds that the expert had not shown discriminatory intent when concluding that the "overwhelmingly male-dominated workforce" was likely to influence hiring decisions).
305. If two employees have the same educational and experiential qualifications and similar job responsibilities, the set of possible explanations for the employer's negative treatment of one of them is significantly reduced. As compared to a situation in which the employees have different qualifications and responsibilities, then, discrimination is proportionately more likely to be the reason for the employer's adverse action.
306. Engquist v. Or. Dep't of Agric., 553 U.S. 591, 604 (2008).
307. Id. at 605;
308. Ezold, 983 F.2d at 542 (observing that Title VII "does not require employers to treat all employees fairly").
309. Engquist, 553 U.S. at 604 (quoting Brief for Petitioner at 48, Engquist, 553 U.S. 591 (No. 91-1780)).
310. This view that employers regularly act arbitrarily but without discriminatory intent reinforces, and is reinforced by, the strong commitment to at-will employment and the related reluctance of courts to "second-guess difficult and expertise-laden personnel judgments.".
311. David Charny & G. Mitu Gulati, Efficiency-Wages, Tournaments, and Discrimination: A Theory of Employment Discrimination Law for "High-Level" Jobs, 33 HARV. C.R-C.L. L. REV. 57+100 (1998). For further discussion of the comparator heuristic's synergies with judicial deference to employers,
312. see infra notes 215-217 and accompanying text.
313. Selmi, supra note 15, at 561-62 (arguing that courts underestimate the probability that discriminatory intent infects this sort of seemingly idiosyncratic treatment).
314. Relatedly, if we were to treat job descriptions as reliable indicators of which jobs might be comparable across positions in a firm, we would assume a stability that runs contrary to the dynamic realities of actual jobs in any given workplace.
315. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 527 (1993).
316. Charny & Gulati, supra note 149, at 60.
317. Id. at 60-61.
318. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("[O]nce the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.").
319. St. Mary's Honor Ctr., 509 U.S. at 511 (holding that a court's "rejection of the [employer]'s proffered reasons" for its actions does not entitle a plaintiff to judgment as a matter of law).
320. As the Court explained in Price Waterhouse v. Hopkins, "In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman." 490 U.S. 228, 250 (1989).
321. As a potential additional virtue, the comparator framework may encourage employers to be more explicit and comprehensive about the grounds for their actions and their agents' actions to protect against adverse inferences.
322. supra note 40 and accompanying text.
323. Still, the imperfections of such an approach raise interesting questions about why the courts treat comparison as confidently as they do. I consider these questions below.
324. Cnty. of Wash. v. Gunther, 452 U.S. 161 (1981).
325. Id. at 177.
326. Id. at 178.
327. Id. at 179.
328. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001).
329. S. Ct. 2658 (2009). For other cases in which comparators are critical to demonstrating disparate impact, see, for example, Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), which found that the plaintiff had made out a cognizable prima facie disparate impact claim by showing that an employment practice affected African-Americans more negatively than others; and Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), which held that a disparate impact claim requires plaintiffs to show that employment practices cause statistical disparities between groups.
330. Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003) (noting that while disparate treatment cases depend on an employer's motivation for the challenged acts, disparate impact cases do not).
331. It bears noting that harassment and stereotyping claims are not mutually exclusive. Indeed, there are a number of cases in which employees have prevailed because the harassment they experienced took the form of stereotyping linked to a protected characteristic. In Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001), for example, a male waiter was repeatedly harassed because his coworkers thought he was too effeminate. As the court observed, At its essence, the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act. Sanchez was attacked for walking and carrying his tray "like a woman"-i.e., for having feminine mannerisms. Sanchez was derided for not having sexual intercourse with a waitress who was his friend. Sanchez's male coworkers and one of his supervisors repeatedly reminded Sanchez that he did not conform to their gender-based stereotypes, referring to him as "she" and "her." And, the most vulgar name-calling directed at Sanchez was cast in female terms. We conclude that this verbal abuse was closely linked to gender.
332. Id. at 874;
333. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir. 2002) (en banc) (finding it "clear" that sexualized attacks on a gay man, "who was singled out from his male coworkers" for hostile treatment, stated a sex discrimination claim).
334. The central question was whether a sexually harassed litigant needed to show additional adverse action by the employer, such as demotion or termination, to state a discrimination claim. The Court held she did not.
335. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) ("Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex."). Both in Meritor and subsequently, the Court recognized that racially harassing acts can likewise create a hostile and discriminatory environment.
336. id. at 66-67;
337. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002) ("Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment.").
338. Meritor, 477 U.S. at 65.
339. id. at 67 ("[The] 'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII." (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1972))). "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'".
340. Id. (alteration in original) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982));
341. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) ("[I]t is important to separate significant from trivial harms. Title VII, we have said, does not set forth 'a general civility code for the American workplace.'" (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)));.
342. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (stating that judicial standards for sexual harassment must "filter out complaints attacking 'the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing'" (quoting BARBARA LINDEMANN & DAVID KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW 175 (1992))).
343. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998);.
344. David S. Schwartz, When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law, 150 U. PA. L. REV. 1697+1748-1758 (2002) (observing that modern academics and courts have questioned the assumption that sexual harassment occurs "because of sex").
345. Oncale, 523 U.S. at 80.
346. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring));
347. id. at 80-81 ("A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.").
348. Id. at 80 ("A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.").
349. On the relevance of a defendant's sexual orientation, the Court stated: Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex.
350. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.
351. Id.
352. Id. at 82.
353. Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) ("The mere fact that men and women are both exposed to the same offensive circumstances on the job site ... does not mean that, as a matter of
354. Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1063 (7th Cir. 2003) (rejecting a discrimination claim after "consider[ing], as in any sex harassment case, the 'social context in which the particular behavior occurs'" (quoting Oncale, 523 U.S. at 81)).
355. This could be characterized as a Bayesian approach to evidence. One might also argue that the Court in Meritor deployed a hypothetical comparator by imagining, in effect, a man who would not have been subject to the same conduct as the female plaintiff. If that is the case, there is no mention of that analytic move by the Court. Further, the "opposite-sex" hypothetical comparator provides little help in understanding the Court's analysis in the same-sex harassment context, where the Court, as in Oncale, did not give any indication that it was imagining that a female worker on the offshore oil platform where Joseph Oncale was harassed would not also have been subject to harassment.
356. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999).
357. Id. at 600-01 (internal citations omitted);
358. City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) ("In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971))).
359. Notably, although Congress had specified this type of segregation as discriminatory, the Court did not simply rest on the statute's findings, which "identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination,'" but, as illustrated, explained and justified that determination. Olmstead, 527 U.S. at 600 (citing 42 U.S.C. §§ 12101(a)(2), (5) (2006)).
360. 490 U.S. 228 (1989).
361. Id. at 236.
362. Id. at 235.
363. Id. at 259 (White, J., concurring) ("I agree that the finding [of sex discrimination] was supported by the record.");
364. id. at 261 (O'Connor, J., concurring) (agreeing with the plurality that "on the facts presented in this case," Hopkins had showed that the firm relied adversely on her sex in its partnership decision);
365. id. at 265 ("Congress was certainly not blind to the stigmatic harm which comes from being evaluated by a process which treats one as an inferior by reason of one's race or sex."). Even the dissenters agreed that "Hopkins plainly presented a strong case ... of the presence of discrimination in Price Waterhouse's partnership process" and that "[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.".
366. Id. at 294, 295 (Kennedy, J., dissenting).
367. Id. at 251;
368. id. ("As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group."). Further, the Court explained why tereotypes violate Title VII's sex discrimination prohibition: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.".
369. Id.
370. Id. at 256.
371. Id.
372. Id. at 251.
373. Prowel v. Wise Bus. Forms, 579 F.3d 285, 291-92 (3d Cir. 2009) (putting comments made to the plaintiff-employee in context and finding those comments sufficient to state a sex stereotyping claim);
374. Schroer v. Billington, 577 F. Supp. 3d 293, 303-05 (D.D.C. 2008) (finding, in context, that an employer's comments about the plaintiff themselves amounted to sex stereotyping). Some would argue that courts are comfortable turning to context where stereotyping or harassing incidents have occurred because those incidents are more easily understood than other occurrences, as described in the cases in Part II, supra, to signal the presence of discriminatory intent. I address this point infra at text accompanying notes 264-265.
375. Price Waterhouse, 490 U.S. at 277.
376. Id.
377. Indeed, as suggested earlier, it is this difficulty that, outside of the stereotyping and harassment cases, drives courts to embrace comparator evidence so strongly.
378. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 (1999).
379. Id. at 623 (Thomas, J., dissenting) (describing the majority's analysis as "fly[ing] in the face" of the Court's precedent). We can see similar disagreement over the link between sexbased rules and stereotyping in Nguyen v. INS, where Justice O'Connor, in dissent, had no difficulty concluding that a rule favoring mothers over fathers for purposes of conferring U.S. citizenship on foreign-born children was rooted in impermissible sex stereotypes, while a majority of the Court found the sex-based distinction to be perfectly legitimate. Compare 533 U.S. 53, 74-97 (2001) (O'Connor, J., dissenting), with 533 U.S. at 56-73 (majority opinion). For further discussion of the ways in which the majority and dissenting opinions in Nguyen interpreted the same facts differently and, consequently, reached different conclusions about the constitutionality of the challenged rule.
380. Goldberg, Constitutional Tipping Points, supra note 30, at 1970-74.
381. Cf. Jesperson v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc) (presenting differing views in majority and dissenting opinions as to whether a policy requiring female employees to wear makeup constituted sex stereotyping);.
382. Zalewska v. Cnty. of Sullivan, 316 F.3d 314, 323 (2d Cir. 2003) (declining to give credence to the "stereotype]" that a woman wearing pants is dressed "more masculinely");.
383. Weinstock v. Columbia Univ., 224 F.3d 33, 44-45 (2d Cir. 2000) (finding that labels such as "nice" and "nurturing" used to describe a female professor were insufficient as a matter of law to demonstrate sexually discriminatory intent).
384. Carbado & Gulati, supra note 21, at 1279-93. Again, even readers who reject either the premise of identity performance theory or the view that discrimination law embodies the theory's premise may benefit from seeing that the easy identification of discrimination in some acts and statements but not others is not because those acts and statements are different in kind but rather because there is more general consensus about discriminatory intent underlying some acts and statements than there is about others.
385. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006).
386. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 618 (1999) (Thomas, J., dissenting).
387. Id. at 624.
388. Id.
389. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77, 79-80 (1998). On the question whether ideas of comparison are embedded in conceptualizations of sexual harassment, Katherine Franke has observed that "sexual harassment is a kind of sex discrimination not because the conduct would not have been undertaken if the victim had been a different sex ... but precisely because ... . it perpetuates, enforces, and polices a set of gender norms that seek to feminize women and masculinize men.".
390. Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691+696 (1997).
391. Olmstead, 527 U.S. at 611 (Kennedy, J., concurring). Justice Kennedy observed that "[a]t the outset it should be noted there is no allegation that Georgia officials acted on the basis of animus or unfair stereotypes regarding the disabled," id., and argued that "absent a showing of policies motivated by improper animus or stereotypes, it would be necessary to show that a comparable or similarly situated group received different treatment,".
392. id. at 613.
393. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537+547-551 (1982). Westen argues that: Equality is an empty vessel with no substantive moral content of its own. Without moral standards, equality remains meaningless, a formula that can have nothing to say about how we should act. With such standards, equality becomes superfluous, a formula that can do nothing but repeat what we already know.
394. Id. at 547 (footnote omitted).
395. C. Edwin Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REV. 933 (1983) (urging that an "equality-of-respect" model reflects the best substantive understanding of the equal protection guarantee);
396. Kent Greenawalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167+1184-1185 (1983) (arguing that the principle of equality has been central to advancement of greater political rights and social opportunities);
397. Karst, supra note 33, at 279-80 (maintaining that equality rhetoric has substantive effect on legal rights and political culture);
398. Kenneth W. Simons, Equality as a Comparative Right, 65 B.U. L. REV. 3876+389 (1985) ("A right to equal treatment is a comparative claim to receive a particular treatment just because another person or class receives it.").
399. Finley, supra note 33, at 1144. Discussing Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1711 (1976), Finley writes, "Kennedy's insight is that there is no determinate, coherent way to choose between ... formal equality or substantive equality. Inevitably, the choice depends on our sets of values and visions of society.".
400. Finley, supra note 33, at 1144 n.113. Finley adds that "[t]here is no way, within the doctrinal framework itself, to tell us when we should adopt the approach of formal equality, and when a substantive equality approach is called for. Instead, we must appeal to deeply political conceptions of what values and type of society we wish to foster.".
401. Id.
402. In addition to its value in terms of judicial accountability, the contextual evaluation also adds substantive value by exposing, and possibly avoiding, the diminishment of antidiscrimination norms effected by the comparator heuristic.
403. supra note 33.
404. supra text accompanying notes 182-188.
405. For extended development of this point, see Goldberg, Constitutional Tipping Points, supra note 30;
406. Goldberg, Anti-Essentialist and Social Constructionist Arguments, supra note 30. We might point to similar reasons to explain courts' turn to discrimination as the legal framework for evaluating sexual harassment, rather than dignity, which is the more common approach within European law. As Gabrielle Friedman and James Whitman have observed, "For Americans ... the concept of 'dignity' often remains unconquerably vague, unfillable with meaningful content... . It is 'discrimination' that seems the hard concept in America, the concept with real content.".
407. Gabrielle S. Friedman & James Q. Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, 9 COLUM. J. EUR. L. 241+268 (2003).
408. Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610 (1987) (relying on an early nineteenth-century definition of race "continued series of descendants from a parent who is called the stock") (internal citation omitted);.
409. Hernandez v. Texas, 347 U.S. 475, 480 n.12 (1954) ("[J]ust as persons of a different race are distinguished by color, these Spanish [sur]names provide ready identification of the members of this class."). These same themes can be traced through lower court decisions.
410. Sail'er Inn, Inc. v. Kirby, 485 P.2d 529, 540 (Cal. 1971) (identifying race and lineage as "immutable trait[s], a status into which the class members are locked by the accident of birth");.
411. Hernandez v. Hous. Indep. Sch. Dist., 558 S.W.2d 121, 124 (Tex. Civ. App. 1977) (characterizing lineage and race as "classifications based upon unalterable traits").
412. Commonwealth v. Rico, 711 A.2d 990, 994 (Pa. 1998) ("The mere spelling of a person's surname is insufficient to show that he or she belongs to a particular ethnic group.").
413. Kenji Yoshino has written in the equal protection context about the way in which a trait's "visibility" enhances the likelihood for heightened judicial review of trait-based classifications.
414. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 YALE L.J. 485+496-498 (1998). He described this visibility as "the perceptibility of traits such as skin color that manifest themselves on the physical body in a relatively permanent and recognizable way."
415. Id. at 497.
416. Saint Francis Coll., 481 U.S. at 610-11 (cataloguing dictionaries and encyclopedias that discuss the socially constructed nature of race);
417. Williams v. Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (describing "'race'" as "a fuzzy term").
418. Goldberg, Constitutional Tipping Points, supra note 30, at 1998-99 (citing Roper v. Simmons, 543 U.S. 551, 610 (2005) (Scalia, J., dissenting)).
419. Steven G. Calabresi, Thayer's Clear Mistake, 88 NW. U. L. REV. 269+272 (1993) ("Mr. Dooley's dictum about the Supreme Court's tendency to follow the election returns seems no less apt today than when it was first printed almost a century ago.");
420. Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV. 2596+2606 (2003) ("[J]udicial decisions rest within a range of acceptability to a majority of the people.").
421. Goldberg, Constitutional Tipping Points, supra note 30, at 1999;
422. Suzanne B. Goldberg, Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas, 88 MINN. L. REV. 1233+1241 (2004) (identifying a similar concern as a reason for the Court's avoidance of explicit morals-based rationales for government action).
423. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (addressing the "risk" that Title VII might function as "a general civility code for the American workplace");
424. Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (explaining that Title VII "eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice" and describing the Court's task as drawing a "balance between employee rights and employer prerogatives").
425. By "low-grade" discrimination, I mean the discriminatory acts that the law has been construed not to prohibit. In the sexual harassment context, for example, the Court has reinforced that Title VII "forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment." Oncale, 523 U.S. at 81. See also id. ("'Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.'" (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))). 217. For a discussion of the historical development of the at-will employment doctrine in America, which arguably has influenced contemporary views about judicial deference to employer autonomy.
426. Clyde W. Summers, Employment At Will in the United States: The Divine Right of Employers, 3 U. PA. J. LAB. & EMP. L. 65+66 (2000) (identifying at-will employment as a "fundamental assumption [that] has shaped our labor law").
427. Deborah A. Ballam, Employment-At-Will: The Impending Death of a Doctrine, 37 AM. BUS. L.J. 653 (2000) (arguing that the expansion of modern tort law is gradually eviscerating at-will employment in America);
428. Cynthia L. Estlund, Wrongful Discharge Protections in an At-Will World, 74 TEX. L. REV. 1655+1655 (1996) ("The employer's presumptive right to fire employees at will-for good reason, for bad reason, or for no reason at all-has been drastically cut back in the last sixty years... The at-will rule now coexists with numerous important exceptions-statutory and common law, state and federal-that prohibit ... discrimination based on race, sex, age, or other characteristics.").
429. Of course, as shown earlier, a court's choices as to how tight a fit to demand between the plaintiff and the comparator are contestable. But once those choices have been made, there can be no denying the difference in treatment, should one exist.
430. The debates among experts about whether Wal-Mart stereotyped and then discriminated against its female employees underscore this point.
431. John Monahan, Laurens Walker & Gregory Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of "Social Frameworks," 94 VA. L. REV. 1715+1742-1743 (2008) (identifying the sex discrimination case of Dukes v. Wal-Mart as a landmark case for "the use of social science research on stereotyping to support claims for relief in employment discrimination [lawsuits]"). This is apart from the question whether the acts and statements are sufficiently harmful to exceed the tolerance for low-grade discrimination.
432. In applying Price Waterhouse to a family responsibilities discrimination suit, for example, the Second Circuit recently rejected an employer's argument that disparaging comments about a woman's commitment to work after having children could not be treated as sex-based "without comparative evidence of what was said about fathers." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004). The statements included inquiries as to how the plaintiff was "planning on spacing [her] offspring," requests that the plaintiff "not get pregnant until [her supervisor] retire[d]," suggestions that the plaintiff "wait until [her son] was in kindergarten to have another child," and statements that it was "'not possible for [the plaintiff] to be a good mother and have this job.'".
433. Id. at 115 (first and fourth alterations in original) (internal quotation marks omitted). The court found specifically that no such comparison was required to see discriminatory intent. Instead, "the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender-based.".
434. Id. at 121. Invoking Price Waterhouse, the court added that "stereotypical remarks about the incompatibility of motherhood and employment 'can certainly be evidence that gender played a part' in an employment decision," and that, therefore, "stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.".
435. Id. at 122 (quoting Price Waterhouse v. Hopkins, 480 U.S. 228, 251 (1989)). The court identified other circuit courts in agreement that these types of comments support a finding of discriminatory intent.
436. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (holding that a direct supervisor's "specifically question[ing] whether [the plaintiff] would be able to manage her work and family responsibilities" supported a finding of discriminatory animus, where the plaintiff's employment was terminated shortly thereafter);.
437. Sheehan v. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999) (holding, in a Pregnancy Discrimination Act case, that a reasonable jury could have concluded that "a supervisor's statement to a woman known to be pregnant that she was being fired so that she could 'spend more time at home with her children' reflected unlawful motivations because it invoked widely understood stereotypes the meaning of which is hard to mistake").
438. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). On remand, the Eleventh Circuit affirmed its earlier determination that "the ['boy'] comments were ambiguous stray remarks ... and are not sufficient circumstantial evidence of bias" to sustain the plaintiff's race discrimination claim. Ash v. Tyson Foods, Inc., No. 08-16135, 2010 WL 3244920, at 13 (11th Cir. Aug. 17, 2010) (alternation in original).
439. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 624 (1999) (Thomas, J., dissenting). The Court showed its sensitivity to this type of critique while allowing a non-comparison-based sex discrimination challenge to the compensation of the female prison guards in County of Washington v. Gunther, emphasizing that the discrimination inquiry did not "require a court to make its own subjective assessment of the value of the male and female guard jobs." 452 U.S. 161, 181 (1981).
440. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 135 (1976).
441. Id.
442. The dissenters, by contrast, would have located sexually discriminatory intent in the pregnancy classification following the same model that the Court has used since for linking stereotyping and harassment to discriminatory intent. They stated that nothing more than "common sense" was necessary to see the link between the two.
443. Id. at 149 (Brennan, J., dissenting) ("[I]t offends common sense to suggest that a classification revolving around pregnancy is not, at the minimum, strongly 'sex related.'").
444. Still, courts must engage in a potentially sociological assessment when evaluating the admissibility of testimony by sociologists, cognitive psychologists, and other experts on discrimination under the standard set out in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Daubert requires federal courts to screen expert testimony for "scientific validity" to ensure reliability and relevance.
445. Id. at 594-95. Some have suggested that Daubert has presented a particular hurdle for expert testimony in discrimination cases.
446. Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517+551-555 (2010) (discussing scholarship addressing the effect of Daubert on the admission of expert testimony in discrimination cases and observing that Daubert, together with summary judgment practices, may be part of a "lethal combination" that disadvantages plaintiffs in civil rights and employment discrimination cases).
447. Sullivan, supra note 3, at 223.
448. Id. at 237.
449. Kotkin, supra note 15, at 1449, 1495-97.
450. Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005);
451. Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 CALIF. L. REV. 1063+1071 (2006);
452. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L. REV. 997 (2006). The Court has long recognized that these biases can result in cognizable discrimination.
453. Watson v. Fort Worth Bank, 487 U.S. 977, 990 (1988) (acknowledging "the problem of subconscious stereotypes and prejudices" in employment). My focus here is on how courts can come to see the operation of these stereotypes and prejudices.
454. supra note 226.
455. Christopher Tarver Robertson, Blind Expertise, 85 N.Y.U. L. REV. 174+177 (2010) (noting the significant cost of expert testimony).
456. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998).
457. This is not to suggest that expert evidence will always be accepted by courts as sufficient or decisive to establish the presence of discriminatory intent, but instead only that the expert testimony enables courts to invoke an external source when drawing the link between the challenged conduct and the protected characteristic.
458. Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring) (stating that expert testimony about sex stereotyping at Price Waterhouse would not have been enough to give rise to inference of discriminatory intent).
459. Joan C. Williams & Stephanie Bornstein, The Evolution of "FReD": Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 HASTINGS L.J. 1311+1357 (2008) (stating that FRD lawsuits have "cemented that plaintiffs in Title VII disparate treatment cases may show [family responsibilities] discrimination even when they lack a comparator");
460. Catherine Albiston et al., Ten Lessons for Practitioners About Family Responsibilities Discrimination and Stereotyping Evidence, 59 HASTINGS L.J. 1285 (2008).
461. Joan Williams and Stephanie Bornstein have defined family responsibilities discrimination as "discrimination against employees based on their responsibilities to care for family members," which includes "pregnancy discrimination, discrimination against mothers and fathers, and discrimination against workers with other family caregiving responsibilities.".
462. Williams & Bornstein, supra note 235, at 1313. They have observed that "[w]hile FRD most commonly occurs against pregnant women and mothers of young children, it can also affect fathers who wish to take on more than a nominal role in family caregiving and employees who care for aging parents or ill or disabled partners.".
463. JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 101-110 (2000);
464. JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, Introduction to WORKLIFE LAW'S GUIDE TO FAMILY RESPONSIBILITIES DISCRIMINATION (2006).
465. Williams & Bornstein, supra note 235, at 1327.
466. Id. at 1314 (describing the issue of caregiver discrimination as one that "has 'arrived' in the public consciousness").
467. In a more limited way, discrimination claims related to gender identity and performance also have begun to gain traction. Compare Schroer v. Billington, 525 F. Supp. 2d 58 (D.D.C. 2007) (refusing to dismiss a sex discrimination claim against the Library of Congress, which withdrew a job offer it had made to a military specialist upon learning she was transgender), with Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (rejecting a sex discrimination claim brought by an airline pilot who was fired after the airline learned she was transgender). Some of the reasons for the more recent claims' success relate to judicial perceptions about the fixed nature of sex in transgender individuals, consistent with the legitimacy concerns regarding identity described earlier. But others, more relevant to the inquiry here, derive from the sex stereotyping in these cases, which is as blatant and relatively easy to recognize as the stereotyping in Price Waterhouse.
468. Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (rejecting a sex discrimination challenge to a casino grooming code that imposed different requirements on men and women);
469. Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) (affirming summary judgment for an employer where an employee alleged that a "no facial jewelry" policy constituted religious discrimination); Pitts v. Wild Adventures, Inc., No. 7:06-CV-62-HL, 2008 WL 1899306, at 5-6 (M.D. Ga. Apr. 25, 2008) (finding no merit to the plaintiff's allegation that a grooming policy that prohibited dreadlocks and cornrows constituted race discrimination against African-American employees).
470. Tamimi v. Howard Johnson Co., 807 F.2d 1550 (11th Cir. 1987) (affirming a judgment in favor of an employee who alleged sex discrimination over a dress code that required female employees to wear makeup and lipstick).
471. Devon Carbado et al., Foreword: Making Makeup Matter, 14 DUKE J. GENDER L. & POL'Y 1 (2007).
472. Carbado et al. state that "grooming standards can (but needn't always) function to regulate and give content to our identities."
473. Id. at 2
474. United States v. Virginia, 518 U.S. 515 (1996) (sustaining a first-generation-type challenge to the exclusion of women from the Virginia Military Academy).
475. Apart from the comparator issue, some courts have treated dress and grooming codes, as opposed to other employer conduct, as falling more broadly within an employer's discretion and, therefore, as less susceptible to restriction via Title VII and other antidiscrimination measures.
476. Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 YALE J.L. & FEMINISM 353+353-355 (2008) ("[T]he typical dress code that simply distinguishes the appearance of men and women in the workplace has been found to be unobjectionable by courts.");
477. id. at 355 n.4 (citing cases).
478. Jespersen, 444 F.3d at 1112.
479. Id.
480. The dissenters disagreed with this characterization of the policy, finding that the grooming code's makeup requirements for women imposed a distinct burden not imposed on men and that this difference in treatment was "'because of' sex" and was "clearly and unambiguously impermissible under Title VII.".
481. Id. at 1114 (Pregerson, J., dissenting) (describing Jespersen's evidence as "show[ing] that Harrah's fired her because she did not comply with a grooming policy that imposed a facial uniform (full makeup) on only female bartenders").
482. Again, the substantive consequence of this application of the comparator heuristic was to limit the reach of discrimination law and its underlying norms.
483. Although the focus here is on developing options that might enable greater judicial recognition of diverse forms of discrimination, it is also possible that, again recalling Fuller, litigation and adjudication are simply not well-suited to resolving certain kinds of complex suits, including those that are the focus of second-generation theorizing.
484. supra notes 25-28 and accompanying text. Legislative and policy advocacy as well as collaborative efforts with employers, public accommodation operators, and others may ultimately be more effective in eliminating barriers related to protected (and other) traits. However, because the primary focus of this Article is on what courts can do, and because many of the extralitigation efforts just described operate in the shadow of doctrine, the alternate analytic approaches here warrant consideration, even if all they do is enhance the possibilities for success of the nonlitigation strategies.
485. The movement to have FRD recognized provides a strategic model worthy of consideration for these kinds of efforts because of its combined focus on developing social science and establishing understanding of the link between family responsibilities and sex discrimination in the public's mind.
486. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006) (quoting Ash v. Tyson Foods, Inc., 129 F. App'x 529, 533 (11th Cir. 2005)).
487. supra, notes 227-229 and accompanying text.
488. supra notes 77-79 and accompanying text. A broader comparator pool might possibly enable a plaintiff to invoke systemic evidence of discrimination by identifying a greater number of similar coworkers who have suffered adverse action from the employer.
489. Even this proposal would move beyond the discrimination theory advanced by Justice Thomas in Olmstead, which restricts the recognition of discrimination to situations in which actual differences of treatment between actual employees can be documented.
490. Sandra Fredman, Reforming Equal Pay Laws, 37 INDUS. L.J. 193+200 (2008);
491. Iain Steele, Note, Beyond Equal Pay?, 37 INDUS. L.J. 119 (2008) (recognizing the value of a hypothetical male comparator for a woman bringing a claim under the Sex Discrimination Act of 1975).
492. Council Directive 2000/43/EC, art. 2, 2000 O.J. (L 180) 22, 24 (emphasis added);
493. Council Directive 2006/54/EC, 2006 O.J. (L 204) 23; Council Directive 2000/78/EC, 2000 O.J. (L 303) 16.
494. Elisabeth Holzleithner, Mainstreaming Equality: Dis/Entangling Grounds of Discrimination, 14 TRANSNAT'L L. & CONTEMP. PROBS. 927+934 (2005). For additional discussion of the use and limitations of comparators in Australia, Canada, and Europe
495. Aileen McColgan, Cracking the Comparator Problem: Discrimination, "Equal" Treatment and the Role of Comparisons, 6 EUR. HUM. RTS. L. REV. 650 (2006), which collects and analyzes cases from European supranational and domestic courts that address the use of comparators
496. Sophia Reibetanz Moreau, Equality Rights and the Relevance of Comparator Groups, 5 J.L. & EQUAL. 81 (2006), which analyzes the Canadian Supreme Court's use of comparators;
497. Elinda Smith, From Wardley to Purvis-How Far Has Australian Anti-Discrimination Law Come in 30 Years?, 21 AUSTL. J. LAB. L. 3 (2008), which critiques the High Court of Australia's constrained use of hypothetical comparators.
498. Fredman, supra note 253, at 201.
499. The failure of most comparable worth litigation in the United States suggests, however, that even this effort might be doomed by charges of unconstrainable subjectivity.
500. Birch v. Cuyahoga Cnty. Probate Court, 392 F.3d 151, 170 (6th Cir. 2004) (noting that courts have refused to apply Gunther analysis where a comparable worth case "involves a subjective assessment of different positions with different duties" (citing EEOC v. Sears, Roebuck & Co., 628 F. Supp. 1264, 1333 (N.D. Ill. 1986))).
501. MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION (1994).
502. Case 129/79, Macarthys Ltd. v. Smith, 1980 E.C.R. 1275, 1289.
503. supra note 257.
504. supra note 230;
505. William T. Bielby, Can I Get a Witness? Challenges of Using Expert Testimony on Cognitive Bias in Employment Discrimination Litigation, 17 EMP. RTS. & EMP. POL'Y J. 377 (2003).
506. If the research showing the general pervasiveness of implicit bias were accepted as sufficient to show discrimination in a specific case, then anyone with a trait that is the subject of an implicit bias in a particular context would conceivably be able to prevail on a discrimination claim. The vast potential reach of this type of reliance on experts would inevitably produce its own powerful legitimacy-threatening concerns related to judicial overregulation of the workplace. These would be separate from questions about whether employers should be held accountable for acting on biases about which they are unaware.
507. Samuel R. Bagenstos, Implicit Bias, "Science," and Antidiscrimination Law, 1 HARV. L. & POL'Y REV. 477+479 (2007) (responding to the critique of implicit bias evidence as scientifically invalid and noting that "the case for using the law to respond to the problem of implicit bias remains strong");
508. Michael Selmi, Response to Professor Wax, Discrimination as Accident: Old Whine, New Bottle, 74 IND. L.J. 1233 (1999) (maintaining that it is well settled that discrimination law can and should respond to subtle forms of discrimination, including those exposed by implicit bias research);
509. Amy L. Wax, Discrimination as Accident, 74 IND. L.J. 1129+1132-1133 (1999) (arguing against employer liability for "unconscious disparate treatment" because "employers have little effective control over unconscious bias");
510. Nagareda, supra note 26, at 156-61 (discussing critiques of implicit bias and structural discrimination theories in the context of evaluating discrimination class actions).
511. This would be outside the context of harassment and stereotyping cases, of course.
512. supra Part IV.
513. For extended discussion about the relationship between heightened scrutiny and rational basis review in the equal protection context
514. Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481 (2004). For discussion of context-sensitive review in other constitutional contexts
515. Cnty. of Allegheny v. ACLU, 492 U.S. 573, 629 (1989) (O'Connor, J., concurring in part and concurring in the judgment), which discusses context-sensitivity with respect to standards for reviewing Establishment Clause violations as well as "many [other] standards in constitutional law";.
516. Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629+1655 n.106 (2006), which describes the "context-sensitive, rough balancing of incommensurable values that is typical of doctrinal analysis in constitutional law."
517. Extending the analogy, the skeptic might also argue that a comparator's presence gives the court some reason, though not as much as in the case of harassment or stereotyping, to be suspicious of the workplace conduct at issue. Thus the presence of a comparator, on this view, could reasonably trigger something similar to a strong form of rational basis review. Without harassment, stereotyping, or a near-identical comparator, the skeptic would argue that courts should have no reason to be suspicious and, therefore, no reason to subject the employer's actions to the relatively more searching contextual assessment. Indeed, we could characterize the approach courts take in the no-comparator cases as analogous to the weakest form of rational basis review, which gives the employer's adverse action the strongest presumption of legitimacy.
518. supra note 173 and accompanying text.
519. For plaintiffs, by contrast, the cost of a move to a context-focused regime would be virtually nil. If the production of a comparator were enough, on its own, to enable an employee to prevail, we might be concerned that employers would seek to invoke a contextual analysis to impede potentially successful comparator-based claims. But the comparator alone does not secure victory for the employee; instead, at most, the employee wins the right to survive summary judgment and bring his or her case to a jury. A context-focused analysis simply opens room for the employee to produce additional evidence of discrimination, which at most could supplement, but could not undermine, whatever observations about discrimination a court would make via a comparator.