The Shifting Sands of Employment Discrimination From Unjustified Impact to Disparate Treatment in Pregnancy and Pay
Citation: 105 Geo L.J. (2017)
In its first significant pregnancy discrimination case in nearly a quarter century, the Supreme Court issued a decision in 2015 in Young v. United Parcel Service, Inc.that cuts against the grain of entrenched employment discrimination doctrine. The starting point for employment discrimination law generally proceeds from a sharp divide between the disparate impact and disparate treatment theories of discrimination. Disparate treatment claims are characterized by courts’ requirement that plaintiffs bear the burden of establishing that the employer acted with discriminatory intent, rigid reliance on proof frameworks to frame the discriminatory inquiry, and insistence on a strict proximity between comparators when discriminatory intent is inferred from differential treatment. These features of employment discrimination cut across the various protected classes enumerated in Title VII of the Civil Rights Act of 19643 and the dominant federal statutes with employment discrimination protections modeled on Title VII, such as the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).