The Impossibility of Agnostic Discrimination Law

In recent years, some discrimination plaintiffs have introduced pure social framework evidence that discrimination remains common in American society and applied social framework evidence that discrimination is likely to occur in circumstances like those found in the defendant firm. Pure social framework evidence seems irrelevant to problems of proof, which apparently raise a narrow factual question: did a particular employer treat particular employees differently because of membership in a protected group? In the much anticipated Wal-Mart v. Dukes, the Supreme Court indicated that applied social framework analysis of discrimination within the defendant firm was to be held to a rigorous standard. At the same time, the opinion’s analysis of proof problems relied heavily on an unsupported claim, or background assumption, about the societal pattern of discrimination. In this Article I argue that either the background assumption had no place in the opinion or that the assumption should be opened to debate though pure social framework evidence. The elimination of background assumptions, I argue, is not an option. Whenever the factual occurrence of differential treatment is at issue, triers of fact must make background assumptions about the societal pattern of discrimination. On the other hand, considerations of both consistency and judicial economy suggest the undesirability of turning each and every discrimination trial into a forum for examining the pattern of discrimination in the United States today. To avoid this problem I propose an agenda for incorporating social frameworks into discrimination doctrine