Citation Robert C. Cadle, Burdens of Proof: Presumption and Pretext in Disparate Treatment Employment Discrimination Cases, 78 Mass. L. Rev. 122 (1993).
Subject Title VII; Title VII -- Disparate Treatment; Title VII -- Burden of Proof

The article argues that a "sliding scale" approach, which requires different levels of quality and quantity of proof to demonstrate disparate treatment under Title VII depending on the reasonableness of the employer's defense, should be adopted to clarify the three part framework for proof established in McDonnell Douglas Corp. v. Green.

Summary:

The article discusses the burdens and order of presentation of proof in Title VII cases alleging disparate treatment after the Supreme Court's decision in McDonnell Douglas Corp. v. Green. The three part framework established in McDonnell Douglas is discussed with emphasis on the nature of the proof required to establish intentional discrimination at the third stage. Supreme Court decisions in McDonnell Douglas and Community Affairs v. Burdine have left the lower courts with no definite standard governing the quality and quantity of proof required to demonstrate intentional discrimination sufficient to refute an employer's defense of adverse employment action due to nondiscriminatory reasons. The article argues that a "sliding scale" approach for analyzing the quality and quantity of proof, which requires different levels of proof depending on the reasonableness of the defense of the employer, is the best standard despite its imprecision. The sliding scale approach would strike a reasonable balance between the rights of employees and employers.

Summarized by:  Aaron Walters