The Role of Second-Order Uniformity in Disparate Treatment Law : McDonnell Douglas's Longevity and the Mixed-Motives Mess

A number of scholars predicted that the Supreme Court's decision in Desert Palace, Inc. v. Costa heralded the demise of the three-step disparate treatment proof structure of McDonnell Douglas Corp. v. Green. Yet, the McDonnell Douglas framework is alive and well. In this article, I explain why the predictions of McDonnell Douglas's death were premature. Disparate treatment claims can be made pursuant to a variety of statutes. Thus, disparate treatment law develops on two levels: within the specific context of each individual statute and on the more general level among the various statutes. I call these two levels, respectively, the first-order and the second-order. Desert Palace offered the possibility of first-order unification of Title VII disparate treatment under the motivating factor framework of the 1991 Civil Rights Act. Yet, in the wake of Desert Palace, the motivating factor framework has not risen to prominence as some scholars predicted. Because Congress specifically amended only Title VII to add the motivating factor framework with the 1991 Act, most courts refuse to apply the 1991 Act's motivating factor framework to the ADEA, the ADA, and even retaliation claims under Title VII. Mixed-motives claims are treated differently depending upon the statute pursuant to which they are made. This article argues that courts and litigants will continue to cling to McDonnell Douglas so long as they lack a viable, coherent alternative to the McDonnell Douglas framework. Thus, Congress should that the 1991 Act's motivating factor framework applies to all federal anti-discrimination statutes. Otherwise, McDonnell Douglas will continue to thrive. Despite its faults and shortcomings McDonnell Douglas provides the second-order uniformity and consistency to disparate treatment law that courts and litigants desire