Structuring a Case Against Complex Multidimensional Discrimination

University of Memphis Law Review, The, Winter 2006 by Kannan, Phillip M

I. INTRODUCTION: THE INDIVIDUAL NATURE OF ANTI-DISCRIMINATION LAWS

This article considers claims of discrimination based on a combination of characteristics such as age, sex, and race (for example, a claim brought by an older black woman). It argues that the approach taken by some courts of appeals in these complex, multidimensional discrimination cases-namely, that subclasses defined by combinations of characteristics are protected subclasses under antidiscrimination statutes-is incorrect.

This article proposes, in place of this unpersuasive theory, an approach based on recent Supreme Court decisions that offers the victims of this complex discrimination a better chance of establishing a prima facie case, a better chance of proving pretext, a better chance of winning, and a broader set of remedies. The framework, referred to in this article as the reliable indicator approach, is based on fact analysis rather than class memberships. Thus, for example, if in a promotion decision a sixty-four year old person was passed over for a forty-one year old, the fact that they are both in the "protected class" under the Age Discrimination in Employment Act (ADEA) is of no consequence; the facts that the individual promoted is younger, significantly younger, and even a generation younger are material. These are facts that are reliable indicators that the decision was tainted with age bias. That they are both over forty, and hence in the protected class, does not imply that the decision was free from age bias. The conclusions derived from this reliable indicator approach are supported by arguments from both positive law and symbolic logic.

A body of social science evidence is developing that shows that discrimination against older women is a growing problem;1 it is a different problem from discrimination against a person because of that person's age alone, and it is a different problem from discrimination against a person because of that person's sex alone. This article analyzes the legal responses to such complex discrimination cases and offers an approach that can prove useful.

A prohibition against discrimination for arbitrary reasons is a fundamental, normative objective of the laws and policies of the United States and of the international community.2 This value is integrated into the Constitution itself; both federal and state governments are forbidden to deny any person the equal protection of the laws.3 Congress has enacted laws to achieve the objective of non-discrimination both in legislation enforcing constitutional provisions4 and in laws passed pursuant to its other constitutional powers, especially its authority to regulate interstate commerce.5

The constitutional and statutory proscriptions against arbitrary discrimination have one fundamental characteristic in common: they seek to protect the individual, not classes.6 That is, the protection that is afforded and the rights created by these laws belong to the individual, not to a group. This fact has both practical and legal significance for individuals who seek to enforce laws and for those that must comply with them. An individual cannot prevail on his/her claim by only proving discrimination against a class, and compliance cannot be established by demonstrating aggregate or class non-discrimination.

It is easy to lose sight of the individual nature of the protection of antidiscrimination laws in part because of the pervasive use of the term "protected class." For example, it is common to refer to women as a protected class under Title VII of the Civil Rights Act of 1964 (Title VII)7 because sex is listed as one of the characteristics on which employment decisions cannot be based.8 However, that is an incorrect interpretation of the law. This law protects each individual no matter what that individual's sex.

An employer that ignores the individuality of protection of Title VII and an institution that ignores the individuality of protection of Title VI of the Civil Rights Act of 1964 (Title VI) do so at their own risk. The reality of this risk is demonstrated by the Supreme Court's decisions discussed in section II. That section also describes how it is the individual that is protected from discrimination under the ADEA and the Americans with Disabilities Act of 1990 (ADA).

Section III develops the argument that combining characteristics from within and/or across antidiscrimination statutes does not result in protected classes or subclasses under any antidiscrimination statute. section IV first analyzes the contrary argument that by using the word "or" when prohibiting discrimination based on a person's race, color, religion, sex, or national origin, Congress intended to ban discrimination based on all combinations of these characteristics; that is, that Congress intended "or" to mean "and/or." The section then concludes that this argument is ultimately flawed because it ignores the more probable likelihood that Congress intended "or" to mean "either/or." In addition, this section illustrates this argument cannot possibly apply when characteristics are drawn from two statutes, such as sex (Title Vu) and age (ADEA). Thus, for example, there is no protected class of older women under any antidiscrimination laws.