October 2011 Vol. 110 No. 1 THE REVIEW

Rethinking Discrimination Law

Sandra F. Sperino

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims.
This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be examined. Second, it demonstrates how the frameworks tend to squeeze out claims that are arguably cognizable under the federal discrimination statutes' broad operative language. This Article's final contribution is to propose a simpler model for thinking about employment discrimination law. It argues for a return to first principles that would require courts to specifically define key statutory language.

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