Robert Belton

Publication Date


Document Type



In 1973 the Supreme Court enunciated an analytical framework in McDonnell Douglas Corp. v. Green with the purpose of providing plaintiffs in statutory employment discrimination cases a full and fair opportunity to prove intentional discrimination despite the unavailability of direct evidence. The McDonnell Douglas framework is used primarily in cases litigated under the disparate treatment theory of discrimination and is based upon presumptions and burden-shifting schemes. McDonnell Douglas was the predominant analytical framework for statutory employment discrimination cases until the Supreme Court decided Price Waterhouse v. Hopkins in 1989. ...

Congress overturned the fundamental holding of Price Waterhouse in the Civil Rights Act of 1991. Congress's decision to overturn Price Waterhouse and the language it adopted in doing so have created additional confusion in the long-standing debate about how to achieve equality in the workplace. McDonnell Douglas and Price Waterhouse stand at the apex of the debate. The Civil Rights Act of 1991, which overturns the fundamental holding of Price Waterhouse, further muddles the substantive and procedural swamp in employment discrimination law by raising a number of issues over which the courts are consistently inconsistent. Two of those issues are the subject of this Article. The first issue is whether the Civil Rights Act of 1991 erased the distinction between McDonnell Douglas and Price Waterhouse. The second issue concerns the reach and limits of a court's discretion to award make-whole and rightful place relief when employers are successful on the statutory same-decision defense.

This Article offers some observations on these two questions. It also briefly comments upon the developing law on mixed-motive cases under the Americans with Disabilities Act ("ADA").