Sunday, April 09, 2006

Why the McDonnell-Douglas proof scheme is unjustified

This Workplace Prof Blog post links to a provocative article titled Flying Without a Statutory Basis: Why McDonnell-Douglas is Not Justified by Any Statutory Construction Methodology.

The abstract notes that "courts have begun to water down or eliminate McDonnell-Douglas' use as an evidentiary standard by juries." That's an understatement. Some might say that the shifting-burden scheme conjured up by the Supreme Court for employment discrimination cases was never intended for use by juries, and cannot be made comprehensible to juries.

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