TEN TROUBLES WITH TITLE VII
AND TRAIT DISCRIMINATION
PLUS ONE SIMPLE SOLUTION
(A TOTALITY OF THE CIRCUMSTANCES FRAMEWORK)
MARK R. BANDSUCH , S.J.*
I. INTRODUCTION
Title VII of th e Civil Rig hts Act1 is t he landmark leg islation th at
promotes equal employment opportunities for, and p rohibits discrimination
against, previ ously prej udiced peop les.2 During its forty-four year history,
the Act has helped to change the color and cont our of the emp loyment
landscape—a f act symboli zed most profoundly on Janu ary 20, 2 009, when
Barack Hussein Obama becam e the first Afri can-American President of th e
United States. 3 Yet, this h istoric event belies the s harp spike in workplace-
related discrimination charges over the preceding years4 and the relatively
poor success rates o f the employees who file Title VII claims.5
The four decade ol d Act was las t amended sig nificantly in 1991,6
which natu rally rais es addit ional q uestions about wheth er Title VII’s well-
worn approach adequately addresses so me of the more sub tle forms of bias
found in today’s mul ticultural work place (e.g ., the trait discrimination
inherent in many company dress codes). Even the amendments to Title
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* Assistant Professor of Business Law, College o f Busin ess Admi nistration, Loyola
Marymount Univ ersity; B.S., 1984, Miami University of Ohio; J.D., 1987 , Cleveland State
University; M.Div., 2000 , Jesuit School of Theology in Berkeley.
1 42 U.S.C. § 2000e (2006).
2 See San Antonio Sch. Dist. v . Rodriquez, 411 U.S. 1 (1972).
3 President Obam a’s nomination of Sonia Maria Sotomayor to the United States
Supreme Cou rt, who was confirmed and sworn in on August 6 , 2009 as the first H ispanic
(Puerto Rican d ecent) and only third female Justice, is another recent example, with
obvious implications for th e future of Title VII in the court system.
4 See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, CHARGE STATISTICS FY 1997
THROUGH F Y 2008, http://eeoc.gov/eeoc/statistics/enfor cement/charges.cfm (last visited
Dec. 12, 2009) [hereinafter EEOC Charge Statistics].
5 See Nathan Koppel, Job Discrimination Cases Tend to F are Poorly in Federal Court,
WALL ST. J., Feb. 19, 2009, a t A16.
6 Civil Rights Act of 1 991, Pub. L. No. 102-166, 105 Stat. 107 (codified as amend ed in
scattered sections of 2, 16, 2 9, 42 U.S.C.).
966 CAPITAL UNIV ERSITY LAW REVIEW [37:965
VII have led to divergent understandings and inconsistent app lications of
its current anal ytical framework7 (which t ogether total the “ten t roubles” of
Title VII).
Part II of this art icle sit uates and explains each problem within one of
the three primary parts of the current analytical framework used by the
courts to evaluate Title VII cases: (1) plaintiff-employ ee’s prima facie
case, (2) defendant-employer ’s affirmative defenses, and (3) plaintiff’s
rebuttals to tho se defens es. Employee appearance po licies p rovide
examples throughout t his article because they demon strate the difficulties
Title VII and the respe ctive leg al require ments o f its three-part framework
encounter when addres sing the more recent man ifestations of trait
discrimination. Part III outlines an al ternative Totality of the
Circumstances (TOC) framework, which then is applied to a recen tly
litigated appearance policy in Part IV, comparing and contrasti ng it with
Title VII’s existing approach. Thi s article presents the TOC fra mework
and the curren t Title VII problems it remedi es in an effort to encourage the
courts and Congress to revisit and revise Title VII a nalysis in a manner
more appropriate for the shifting s ocietal, politi cal, and legal contexts
confronting the mul ticultural workp lace of the twent y-first centu ry.
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7 Price Waterhouse v. Hopkins, 490 U.S. 228, 279 (1989) (Kenn edy, J., dissenting
opinion).
2009] TITLE VII 967
II. TEN TROUBLES WITH TITLE VII’S CURRENT ANALYTICAL
FRAMEWORK8
The Civ il Ri ghts Act o f 196 49 is Cong ress’ comprehensive anti-
discrimination legislat ion that addresses inequalities in voting, facilities,
education, housing, credit, and empl oyment—with Title VII of the Act
dealing specifically with u nlawful and discriminat ory employment
practices.10 Congress currently recog nizes four fund amental causes of
action under Title VII: (1) d isparate tre atment, (2) mi xed-motives, (3 )
disparate impact, and (4) retaliation.11 The courts usually analyze each
theory under a comparable three-part an alytical framework established in
McDonnell Douglas Corporation v. Green:12 which looks s equentially at
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8 The Ten Troubles with Titl e VII and Trait Discrimination are:
• Trouble #1: Title VI I’s Inability to Adequately Address Recent Forms of
Discrimination
• Trouble #2: The Immutability Standard Fails to Measure the Real Harms of
Assimilation and Subord ination
• Trouble #3: The Emphasis on Immutability as the Measure of Prote cted
Class Status
• Trouble #4: Th e Imprecision Between Un acceptable Stereotypes and
Acceptable Norms
• Trouble #5: Title VII’s Classifications of Intentionality Create Confusion
About Causation
• Trouble # 6: Title VII’s Clas sifications of Intentionality Fail to Adequately
Consider Cognitive Bias an d Stereotypes
• Trouble #7: The Confusion Caused by Title VII’s Affirmative Defen ses
• Trouble #8: The Complexity, Confusion, and Convergence of Title VII’s
Overall Framework
• Trouble #9: The Under and Over D etermination of Discriminat ion Resulting
from Title VII’s Framework
• Trouble #10: Title VII Fa ils to Fulfill Its Legislative Purpose
9 42 U.S.C. §§ 1981–200 0 (2006).
10 Id. § 2000e(n). Although this paper focuses on Title V II’s directives to emp loyers,
Title VII also applies to varying degrees to employment ag encies, labor organiz ations, and
joint labor-management comm ittees. Id.
11 Id. § 2000e-3(a).
12 411 U.S. 792 (1973).
