[**] Presidential Professor of Law, University of Oklahoma College of Law. LL.B., University of Jos, Nigeria, 1989; LL.M., Harvard Law School, 1991; S.J.D., Harvard Law School, 1996. I am grateful to several students, all members of the Class of 1997, who have proved indispensable to my research and writing efforts over the years: Kevin Wisner, Aleatra Williams, Ha "Brooke" Do, Melanie Simon, and Stephan Wallace. They taught me that teaching is only meaningful when your heart is as engaged as your mind. This Article is dedicated to them. Finally, I am thankful to Leo H. Whinery and William McNichols for comments on earlier drafts and to Greg Luster and Aleatra Williams for their research assistance. Return to text.

[1] Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897). Return to text.

[2] See id. at 465. Return to text.

[3] Id. Return to text.

[4] 509 U.S. 502 (1993). Return to text.

[5] See id. at 514. Under the Court's analysis, there are two ways a plaintiff could obtain a judgment. First, as a matter of law and pursuant to the Federal Rules of Civil Procedure 50(a)(1) or 52(c), a court must award judgment to the plaintiff if a rational person would find that the evidence presented constitutes a prima facie case, and the defendant failed to meet its burden of production by not introducing evidence "which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse [employment decision]." Id. at 509. Second, a plaintiff is entitled to judgment if the defense fails to sustain its burden, and the factfinder determines that the prima facie case is supported by a preponderance of the evidence. See id. at 510 n.3. "It is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. at 519. Return to text.

[6] 42 U.S.C. §§ 2000e-1 to -17 (1994). Return to text.

[7] See Hicks, 509 U.S. at 510-11. Return to text.

[8] See, e.g., Management, Civil Rights Attorneys Differ on Effect of Hicks Decision, 1993 DAILY LAB. REP. (BNA) No. 126, at C-1 (July 2, 1993) (reporting that civil rights attorneys interpret the Hicks decision as increasing a plaintiff's difficulty of prevailing in a discrimination action); Joan Biskupic, High Court Ends Session on Note of Conservatism, INDIANAPOLIS STAR, July 4, 1993, at B8 (contending that the majority's rewrite of long-standing interpretations of federal laws barring job discrimination pleased businesses but angered civil rights activists); Overburdened: The Supreme Court Has Made It Too Difficult to Prove Bias: The Congress Must Act, NEWSDAY, July 1, 1993, at 54 (claiming that the outrageous decision calls for the immediate attention of Clinton and Congress to rescue truth and justice); David G. Savage, Justices Rule Fired Workers Must Prove Bias, L.A. TIMES, June 26, 1993, at A1 (quoting the director of the Women's Rights Project for the American Civil Liberties Union as stating that "this is going to make it next to impossible for discrimination complainants to win"). Return to text.

[9] See, e.g., Robert Brookins, Hicks, Lies, and Ideology: The Wages of Sin Is Now Exculpation, 28 CREIGHTON L. REV. 939 (1995) (arguing that the Court has eroded evidentiary and procedural rules for employment discrimination cases to create an unfair advantage for employers); William R. Corbett, The "Fall" of Summers, The Rise of "Pretext Plus," and the Escalating Subordination of Federal Employment Discrimination Law to Employment at Will: Lessons from McKennon and Hicks, 30 GA. L. REV. 305 (1996) (arguing that Hicks and McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), subordinate positive law enacted by Congress to the common law doctrine of employment-at-will); Developments in the Law- Employment Discrimination, 109 HARV. L. REV. 1568, 1579-1602 (1996) [hereinafter Developments] (arguing that Hicks did not resolve the debate over what a plaintiff must prove in an employment discrimination lawsuit); Robert J. Smith, The Title VII Pretext Question: Resolved in Light of St. Mary's Honor Center v. Hicks, 70 IND. L.J. 281, 304 (1994). Smith argues that the decision presents "the most balanced approach to deciding Title VII claims by not unfairly assuming that an employer's employment action was discriminatory while alleviating civil rights activists' concerns about needing 'plus' proof of discrimination and the difficulty of surviving the summary judgment stage." Id. Return to text.

[10] See Corbett, supra note 9, at 351-52 (arguing that the Court's claim of a lack of authority to impose liability on an employer absent positive proof of discrimination is, in reality, an affirmance of the majority's preference for employment-at-will). Return to text.

[11] See id. at 345. "Pretext plus" originated in Valdez v. Church's Fried Chicken, 683 F. Supp. 596, 631 (W.D. Tex. 1988). Catherine J. Lanctot used the phrases "pretext-plus" and "pretext-only" in her article, The Defendant Lies and the Plaintiff Loses: The Fallacy of the "Pretext-Plus" Rule in Employment Discrimination Cases, 43 HASTINGS L.J. 57, 66 (1991). Return to text.

[12] 411 U.S. 792 (1973). Return to text.

[13] 450 U.S. 248 (1981). Return to text.

[14] See id. at 253. In McDonnell Douglas and Burdine, the Court developed a procedural model for framing the factual issues and allocating the burdens of proof in a Title VII disparate treatment lawsuit to enable the plaintiff to prove her case with circumstantial evidence. See id. The Burdine Court stressed that the plaintiff maintains the burden of persuasion throughout the lawsuit and must be given a fair opportunity to prove discrimination. See id. The plaintiff's successful prima facie case creates a rebuttable presumption that the employer intentionally discriminated. See id. After establishing a prima facie case, the burden of production shifts to the employer to proffer a legitimate, nondiscriminatory reason for its adverse employment decision. See id. Thereafter, the plaintiff has the opportunity to demonstrate that the employer's articulated reason is pretextual by proving that the reason was not true or not the real reason. See id. at 256. Return to text.

[15] See, e.g., Corbett, supra note 9, at 330 (arguing that the Supreme Court has refused to displace the employment-at-will doctrine to the extent necessary to effectuate the objectives of antidiscrimination laws and that employment-at-will has "won so many battles before the Supreme Court that the war may almost be over"). Return to text.

[16] See Smith, supra note 9, at 304. Return to text.

[17] See Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV. 2229, 2269 (1995) (arguing that the McDonnell Douglas- Burdine proof structure was flawed because the prima facie case standard was inadequate in a substantial category of cases). Return to text.

[18] See id. Return to text.

[19] See Sherie L. Coons, Proving Disparate Treatment After St. Mary's Honor Center v. Hicks: Is Anything Left of McDonnell Douglas?, 19 J. CORP. L. 379, 412-14 (1994) (discussing perceived inconsistencies in the Court's analysis in Hicks); Thomas A. Cunniff, The Price of Equal Opportunity: The Efficiency of Title VII After Hicks, 45 CASE W. RES. L. REV. 507, 540-41 (1995) (stating that direct evidence of racial discrimination is very difficult to obtain); Ann C. McGinley, Rethinking Civil Rights and Employment at Will: Toward a Coherent National Discharge Policy, 57 OHIO ST. L.J. 1443, 1455, 1458-59 (1996) (stating that Hicks distorts twenty years of Supreme Court precedent and is an unfair approach to civil rights law). Return to text.

[20] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 534-35 (1993) (Souter, J., dissenting). Justice Souter noted that the majority opinion essentially mandates direct evidence to satisfy a framework predicated on the absence of direct evidence and that "[t]he majority's scheme greatly disfavors Title VII plaintiffs without the good luck to have direct evidence of discriminatory intent." Id. Return to text.

[21] See Malamud, supra note 17, at 2236-37. Malamud astutely observes that "to accord legal significance to the plaintiff's satisfaction of the 'requirements' of the prima facie case 'stage' and the pretext 'stage' of McDonnell Douglas-Burdine is to engage in an act of misplaced concreteness. The world of practice under McDonnell Douglas-Burdine remains a disorderly one, in which the assignment of categories of facts to 'stages' of the case is unstable." Id. at 2237. Return to text.

[22] The exclusion of African Americans from the principles enunciated in the Declaration of Independence, and enshrined in the Constitution, was manifested in the infamous Dred Scott decision where the Supreme Court held that blacks could not sue in U.S. courts and that Congress could not prohibit slavery in the Territories. See Scott v. Sandford, 60 U.S. (19 How.) 393, 432-54 (1856) (Dred Scott). The Dred Scott decision explicitly formalized the social reality that, although free, former slaves and their descendants were not deemed equal in the eyes of society and, ultimately, in the eyes of the law. In the decades that followed Dred Scott, the struggle for equality dominated the American landscape, beginning with the Civil War, the enactment of the Civil War amendments, the civil rights movement, and culminating in the Civil Rights Act of 1964. These victories, while sweet and certainly hard won, nonetheless have fallen short of the goal of ensuring that equality is the reality of American society and the American workplace. The egalitarian ideals of the Constitution have ostensibly been extended to minorities throughout the nation, but the realization of equality as the norm in life remains a distant goal. See James U. Blacksher, Dred Scott's Unwon Freedom: The Redistricting Cases as Badges of Slavery, 39 HOW. L.J. 633, 659 (1996) (arguing that the Constitution relegated African Americans to a subordinate status because of unanswered questions dating back to Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), Plessy v. Ferguson, 13 U.S. 537 (1896), and The Civil Rights Cases, 109 U.S. 3 (1883), and which result in a modern badge of slavery); Juan Williams, The Survival of Racism Under the Constitution, 34 WM. & MARY L. REV. 7, 8, 10-14 (1992) (affirming claims that the Declaration of Independence and the Constitution were defective from their inceptions, allowed racial injustice to exist under the rule of law they created, and resulted in the perversion of egalitarian ideals); see also Owen M. Fiss, A Theory of Fair Employment Laws, 38 U. CHI. L. REV. 235, 237 (1971) (noting that while antidiscrimination laws are largely an attempt to secure equality for African Americans, "the desire to help blacks is qualified" because the laws do not specify any particular race or color and because the law requires only that employers refrain from using race as a basis for decision making). Fiss argues that the use of race as a criterion for decision making would only impair productivity, both for the individual businessman as well as for society at large. See id. Fiss concludes, however, that the two qualifications "make the conferral of benefits on blacks particularly palatable, ethically and politically, to the political majority." Id. Return to text.

[23] Equality of natural rights, but not social and political rights, informed this nation's political birth. For example, although President Lincoln disagreed with the Dred Scott decision, he did not go so far as to recognize procedural and substantive equality for all:

I think the authors of that notable instrument [Declaration of Independence] intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in 'certain inalienable rights, among which are life, liberty, and the pursuit of happiness.' This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.
Abraham Lincoln, Speech on the Dred Scott Decision at Springfield, Ill. (June 26, 1857), in ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1832-1858, at 398 (Don E. Fehrenbacher ed., 1989). Return to text.

[24] See HENRY SUMNER MAINE, ANCIENT LAW 164-65 (1861). Return to text.

[25] See id. Return to text.

[26] See BLACK'S LAW DICTIONARY 1410 (6th ed. 1990). Return to text.

[27] See id. Return to text.

[28] See id. Return to text.

[29] See infra notes 217-21 and accompanying text for a clarification of the term "presumption." The conflicted use and application of the word "presumption" by the Supreme Court contributes significantly to the difficulty encountered by plaintiffs in proving discrimination. A proper use of the terminology employed when dealing with evidentiary standards and rules will greatly ease the confusion that current usage has engendered. Return to text.

[30] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 505 (1993). Return to text.

[31] See id. Return to text.

[32] See id. Return to text.

[33] See id. Return to text.

[34] See id. at 506. Return to text.

[35] See Hicks v. St. Mary's Honor Ctr., 756 F. Supp. 1244, 1249 (E.D. Mo. 1991). Return to text.

[36] See id. at 1249-50. Return to text.

[37] See id. at 1250 (finding that the defendant employer successfully demonstrated that the plaintiff had committed sufficiently severe internal policy violations to warrant his dismissal). The defendant asserted that on one occasion, Mr. Hicks failed to supervise his subordinates who then abandoned their posts. This failure of Hicks to supervise his subordinates "left St. Mary's vulnerable to escape or knavery by the inmates." Id. The defendant also asserted that Hicks's violations were sufficient in number and frequency to justify his termination. See id. Return to text.

[38] See id. at 1251 (finding that the supervisor provoked the confrontation between the plaintiff and his supervisor and that the plaintiff was either singled out for harsh discipline or was the only employee disciplined at all). Return to text.

[39] See id. at 1252. Return to text.

[40] See id. at 1251-52. Return to text.

[41] See Hicks v. St Mary's Honor Ctr., 970 F.2d 487, 492 (8th Cir. 1992). Return to text.

[42] See id. Return to text.

[43] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993). Return to text.

[44] See id. Return to text.

[45] See id. at 511. Return to text.

[46] Id. at 510-11. Return to text.

[47] See id. at 511. Return to text.

[48] For an early formulation of the at-will doctrine, see HORACE G. WOOD, ON THE LAW OF MASTER AND SERVANT (1877). The first reported case applying the at-will doctrine is Payne v. Western & Atlantic Railroad, 81 Tenn. 507 (Tenn. 1884), overruled on other grounds by Hutton v. Watters, 179 S.W. 134 (Tenn. 1915). In Payne, an agent of the defendant, Western & Atlantic Railroad, ordered its employees not to trade with the plaintiff, who owned a store near the railroad's depot. See id. at 509-10. The order included a threat of discharge for any employee who continued to trade with the plaintiff. See id. at 511. Although the plaintiff sued in tort, see id. at 510-11, the court resolved the conflict using principles of contract law:

If the employees are engaged for fixed terms, it may be assumed that a discharge by the employer for such a reason would be unwarranted, and would give the employe[e] an action for breach of contract. But no one else, except a privy, could complain of the breach of contract, and the ground of the employe[e]'s action would be the refusal of the employer to pay him for the period promised in the contract of service. If the service is terminable at the option of either party, it is plain no action would lie even to the employe[e]; for either party may terminate the service, for any cause, good or bad, or without cause, and the other cannot complain in law . . . .
Id. at 517. The court further stated that while actions such as the defendant's may be morally wrong,

the law can adopt and maintain no such standards for judging human conduct; and men must be left, without interference to buy and sell where they please, and to discharge or retain employe[e]s at will for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act per se.
Id. at 518. Return to text.

[49] See David Walsh & Joshua Schwarz, State Common Law Wrongful Discharge Doctrines: Up-date, Refinement, and Rationales, 33 AM. BUS. L.J. 645, 646 (1996). Return to text.

[50] In addition to contractual provisions stating that an employee will be terminated only for just cause, most jurisdictions have recognized a public policy exception to the at-will doctrine. See generally David Millon, Default Rules, Wealth Distribution, and Corporate Law Reform: Employment-at-Will Versus Job Security, 146 U. PA. L. REV. 975, 1041 n.41 (1998) (citing MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW 54-53 (1994)). Courts have also relied on tort and implied contractual theories to limit an employer's power over an employee. See, e.g., Tatge v. Chambers & Owens, Inc., 565 N.W.2d 150, 152 (Wis. Ct. App. 1997) (relying on implied contractual theory); Continental Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444, 453 (Tex. 1996) (relying on tort theory). Return to text.

[51] See Jay M. Feinman, The Development of the Employment at Will Rule, 20 AM. J. LEGAL HIST. 118, 118 (1976). Feinman argues that from the very beginning, the at-will doctrine was inconsistent with master-servant law and contract doctrine. See id. He argues that Horace Wood's treatise on master-servant law was wrong in several respects. See id. at 126. First, the cases cited by Wood as supportive of the employment-at-will rule were "far off the mark." Id. Secondly, Wood clearly misstated the law applied by American courts at the time, and lastly, according to Feinman, Wood offered no policy reasons to support the rule he stated so absolutely. See id. Return to text.

[52] See Walsh & Schwarz, supra note 49, at 646-47. Return to text.

[53] See, e.g., Smith v. Atlas Off-Shore Boat Serv., Inc., 653 F.2d 1057, 1061-62 (5th Cir. 1981); Cloutier v. The Great Atl. & Pac. Tea Co., 436 A.2d 1140, 1143 (N.H. 1981). Return to text.

[54] See, e.g., Belline v. K-Mart Corp., 940 F.2d 184, 190 (7th Cir. 1991) (holding that Illinois public policy protects employees who report unlawful conduct to their employer). Return to text.

[55] See, e.g., Douglas v. Wilson, 774 P.2d 1356, 1358-59 (Ariz. Ct. App. 1989) (recognizing a public policy exception to the employment-at-will doctrine where an employee is discharged for filing a worker's compensation claim). Return to text.

[56] See, e.g., Petermann v. International Bhd. of Teamsters, 344 P.2d 25, 27-28 (Cal. Ct. App. 1959). Return to text.

[57] For example, the Virginia Supreme Court recently held that an employer's termination of an employee shortly after she returned from maternity leave was a violation of Virginia public policy. See Bailey v. Scott-Gallaher, Inc., 480 S.E.2d 502, 505 (Va. 1997). Conversely, the Oklahoma Supreme Court recently held that the public policy exception to the at-will doctrine does not apply to an employee claiming constructive discharge due to sexual harassment at work. See Marshall v. OK Rental & Leasing, Inc., 939 P.2d 1116, 1119 (Okla. 1997). The court re-emphasized that in Oklahoma, the public policy exception applies "in a narrow class of cases in which the discharge is contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law. . . . In light of the vague meaning of the term public policy we believe the public policy exception must be tightly circumscribed." Id. at 1119 (quoting Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989)); accord Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 527-28 (Colo. 1996) (holding that the discharge of an accountant for refusing to violate rules of professional conduct is a violation of public policy). Return to text.

[58] See 2 U.S.C. § 1311 (Supp. 1995) (providing rights and protections to legislative personnel under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, and Title I of the Americans with Disabilities Act of 1990); 5 U.S.C. § 7204 (1994) (prohibiting discrimination in government employment); 20 U.S.C. § 1681 (1994) (prohibiting sex discrimination in federally financed education programs); 29 U.S.C. § 623 (1994) (prohibiting age discrimination in employment); 42 U.S.C. § 1983 (1994) (prohibiting the deprivation of civil rights). Return to text.

[59] See, e.g., ALA. CODE § 29-4-3 (1975) (prohibiting racial, religious, and sexual discrimination of legislative employees); ARIZ. REV. STAT. § 41-1463 (1996) (prohibiting employment discrimination based on race, color, religion, sex, age, handicap, or national origin). Return to text.

[60] See, e.g., Bailey, 480 S.E.2d at 505 (holding that a plaintiff may rely on the public policy exception, even in the absence of a specific statute identifying such a protected policy). Return to text.

[61] See, e.g., Marshall, 939 P.2d at 1120 (refusing to recognize a common law claim for constructive discharge in violation of public policy where the claim is predicated on the employee's status rather than her conduct). Return to text.

[62] See, e.g., Brodie v. General Chem. Corp., 112 F.3d 440, 444 (10th Cir. 1997) (finding that additional consideration, other than continued employment, is needed for an employer to unilaterally revoke or modify a handbook that creates an employment contract); Thompson v. American Motor Inns, Inc., 623 F. Supp. 409, 413, 418 (W.D. Va. 1985) (finding that the employment-at-will doctrine is a "rebuttable presumption and not a substantive rule of law" and holding that a warning procedure included in an employee handbook created an implied unilateral contract); Barger v. General Elec. Co., 599 F. Supp. 1154, 1161 (W.D. Va. 1984) (holding that an employee handbook can create an enforceable promise). Return to text.

[63] See, e.g., Dumas v. Auto Club Ins. Ass'n., 473 N.W.2d 652, 655 (Mich. 1991) (stating that an implied contract limiting an employer's right to discharge employees at will may arise from the employer's oral promise to employees); Toussaint v. Blue Cross & Blue Shield, 292 N.W.2d 880, 890 (Mich. 1980) (finding that oral statements by an employer or its agents regarding job security may form the basis of an enforceable promise not to discharge without good or just cause); Mers v. Dispatch Printing Co., 483 N.E.2d 150, 154 (Ohio 1985) (stating that oral representations, handbooks, and company policies comprise components of an employment contract). Return to text.

[64] See Kumpf v. Steinhaus, 779 F.2d 1323, 1324 (7th Cir. 1985); Capiello v. Ragen Precision Indus., Inc., 471 A.2d 432, 434 (N.J. Super. Ct. App. Div. 1984). Return to text.

[65] See 42 U.S.C. § 2000e-2(a) (1994). Return to text.

[66] This is because common law causes of action may be narrowly construed where the issue is discrimination. Judges, who want to keep discrimination cases from funneling through tort or contract law, have more leeway to limit or restrict cases brought under these theories. Return to text.

[67] See Corbett, supra note 9, at 351-52 (arguing that the at-will doctrine implicitly survives through the Court's interpretation in Hicks). Some scholars have advocated a single just-cause rule to replace the various exceptions to the at-will doctrine. See, e.g., Donald C. Robinson, The First Decade of Judicial Interpretation of the Montana Wrongful Discharge from Employment Act (WDEA), 57 MONT. L. REV. 375, 380 (1996) ("[P]ublic employees may have a constitutionally protected property interest in continued employment if there is some contract, rule, regulation, or law which infers a specified term of employment or a 'just cause' requirement for discipline or termination."). But see Todd H. Girshon, Wrongful Discharge Reform in the United States: International and Domestic Perspectives on the Model Employment Termination Act, 6 EMORY INT'L L. REV. 635, 704 (1992) ("[T]o the extent that just cause imposes an unrealistically rigorous standard of review, applied liberally to most employees through relatively short qualifying periods, as in the Canadian Federal sector, the statutory right could arguably translate into an institutionalization of mediocre performance."). Return to text.

[68] See Nicolle R. Lipper, Sexual Harassment in the Workplace: A Comparative Study of Great Britain and the United States, 13 COMP. LAB. L.J. 293, 300 (1992) (explaining that many tort-based causes of action require the plaintiff to prove physical harm or that the harassing conduct was extreme and outrageous). Return to text.

[69] See, e.g., Walker v. Modern Realty, Inc., 675 F.2d 1002, 1003 (8th Cir. 1982) (concluding that language used in a letter agreeing to employ the plaintiff was sufficiently clear to form an enforceable contract); Pine River State Bank v. Metille, 333 N.W. 2d 622, 633 (Minn. 1983) (holding that provisions of an employee handbook limiting the employer's ability to terminate its employees were contractually binding and that the employee was wrongfully terminated contrary to those provisions). Because some courts have rejected the view that an obligation to discharge an employee in good faith should be implied in an at-will employment contract, only extreme situations have warranted a public policy exception. For example, in Pugh v. See's Candies, Inc., 171 Cal. Rptr. 917 (Cal. Ct. App. 1981), an employee who was terminated after 32 years of employment prevailed in a wrongful discharge claim because the employer breached an implied promise not to act arbitrarily. The court found that an enforceable promise arose from the duration of employment, the promotions the employee received, the lack of criticism, and the employer's policies. See id. Return to text.

[70] See, e.g., Woolley v. Hoffmann-La Roche, Inc. 491 A.2d 1257, 1270-71 (N.J. 1985), modified on other grounds by Woolley v. Hoffmann-La Roche, Inc., 499 A.2d 515 (N.J. 1985) (holding that where an employer distributes an employee handbook specifying the reasons for and procedures by which an employee may be terminated, the employer may avoid the resultant contractual significance of those provisions by including a prominent statement in the handbook to the effect that employment remains at will). Return to text.

[71] In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the plaintiff was fired after his supervisor manufactured an altercation that provoked the plaintiff to threaten him. See id. at 508; cf. Gaglidari v. Denny's Restaurants, Inc., 815 P.2d 1362, 1368 (Wash. 1991) (finding that an employee handbook created an employment contract, but that if the employee violated the provision prohibiting fighting on company premises, immediate dismissal was justified). The Hicks Court found for the defendant/employer even though the behavior in question was an attempt to protect the employer's interests. See Hicks, 509 U.S. at 524. Return to text.

[72] See Feinman, supra note 51, at 118; see also Murphy v. American Home Prod. Corp., 448 N.E.2d 86, 89 (N.Y. 1983) (declining to recognize the tort of wrongful discharge and holding that such a "significant change in [the] law is best left to the Legislature"). The court opined:

Those jurisdictions that have modified the traditional at-will rule appear to have been motivated by conclusions that the freedom of contract underpinnings of the rule have become outdated, that individual employees in the modern work force do not have the bargaining power to negotiate security for the jobs on which they have grown to rely, and that the rule yields harsh results for those employees who do not enjoy the benefits of express contractual limitations on the power of dismissal. Whether these conclusions are supportable or whether for other compelling reasons employers should, as a matter of policy, be held liable to at-will employees discharged in circumstances for which no liability has existed at common law, are issues better left to resolution at the hands of the Legislature.
Id. at 89. Return to text.


[74] See LAWRENCE M. FRIEDMAN, CONTRACT LAW IN AMERICA 184-94 (1965). Return to text.

[75] See Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 463-64 (1909). Return to text.

[76] See id. at 482-87. Return to text.

[77] 198 U.S. 45 (1905). Return to text.

[78] See id. at 64. Return to text.

[79] MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW: 1870-1960, at 33 (1992). Return to text.

[80] 83 U.S. (16 Wall.) 36 (1872). Return to text.

[81] See Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8, 10-11 (1927); Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 357-67 (1980). Return to text.

[82] International News Serv. v. Associated Press, 248 U.S. 215, 263 (1918) (recognizing a property right in newsgathering) (Brandeis, J., dissenting). Return to text.

[83] Pound, supra note 75, at 460-61. Return to text.

[84] See Cohen, supra note 81, at 9-11. Return to text.

[85] 261 U.S. 525 (1923). Return to text.

[86] See id. at 559, 562. The purpose of the invalidated law was "[t]o protect women and minors . . . from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living." Id. at 541-42. Return to text.

[87] Cohen, supra note 81, at 10-11. Return to text.

[88] Id. at 12-13. Return to text.

[89] See generally Pound, supra note 75 (arguing that, absent protective legislation, employees cannot bargain on equal footing with employers). Return to text.

[90] See Nathan Isaacs, The Standardizing of Contracts, 27 YALE L.J. 34, 34 (1917) ("[T]he movement of progressive societies has hitherto been a movement from status to contract." (quoting SIR HENRY MAINE, ANCIENT LAW 165 (1861))). Isaacs further noted that in Anglo-American society, the same is true despite scholarly assertions to the contrary. Observing that the difference between status and contract is "not one of kind, but one of degree," Isaacs prophetically concludes that the "twentieth century is witnessing a reaction back to status." Id. at 40. Return to text.

[91] For example, CEO's of large corporations, highly skilled individuals, and persons employed in upper management positions, all have more leverage to negotiate the terms of their employment contracts. The vast majority of American workers are either employed at will or have employment contracts that are not necessarily the product of consensual negotiation. See Joann S. Lublin, Pay for No Performances, WALL ST. J., Apr. 9, 1998, at R1. Return to text.

[92] See Theresa M. Beiner, Do Reindeer Games Count as Terms, Conditions or Privileges of Employment Under Title VII?, 37 B.C. L. REV. 643, 645 (1996) (discussing the invisible advantages not typically enjoyed by minorities in the workplace, such as lunch with a supervisor or playing golf with the boss). See generally Stephanie M. Wildman, Privilege in the Workplace: The Missing Element in Antidiscrimination Law, 4 TEX. J. WOMEN & L. 171 (1995) (arguing that antidiscrimination law fails to address the effects of cultural values that assign privilege to maleness). Return to text.

[93] See American Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 209 (1921) ("A single employee was helpless in dealing with an employer. . . . Union was essential to give laborers [an] opportunity to deal on equality with their employer."). Certain classes of employees, such as low-wage unskilled workers, low-level management employees, regardless of race or sex considerations, are particularly affected by disparities in bargaining power. Consequently, unionization and collective bargaining agreements typically implement a "for cause" standard for discharge. See Lawrence E. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404, 1413 (1967). Return to text.

[94] The classic example of this is in the area of contracts arising from employment manuals and employee handbooks. Courts have generally held that an employer may avoid the contract implications of an employment manual by placing a conspicuous disclaimer in the manual. See, e.g., Dell v. Montgomery Ward & Co., 811 F.2d 970, 972-74 (6th Cir. 1987); Robinson v. Christopher Greater Area Rural Health Planning Corp., 566 N.E.2d 768, 772 (Ill. App. Ct. 1978) (stating that a clear disclaimer negates any promise made in an employee handbook or personnel policy). Additionally, employers typically reserve the right to add, delete, or otherwise change the provisions of the manual. See Woolley v. Hoffmann-LaRoche, Inc., 491 A.2d 1257, 1270-71 (N.J. 1985) modified on other grounds by Woolley v. Hoffman-LaRoche, Inc., 499 A.2d 515 (N.J. 1985). Return to text.

[95] See Pound, supra note 75, at 454. Return to text.

[96] A contract does not affect an employee's at-will status unless it specifically states a term of employment or states that discharge will occur only for just cause. Many employers require their workers to sign a document entitled "Employment Contract," yet the workers remain at-will employees. Because the employer typically sets the terms of the contract, the employer also controls the status of the employee as at-will or not. Return to text.

[97] See, e.g., Kumpf v. Steinhaus, 779 F.2d 1323, 1325-26 (7th Cir. 1985) (stating that the employment-at-will doctrine reinforces an employer's privilege to manage its corporate affairs). Return to text.

[98] See Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 492 (8th Cir. 1992). Return to text.

[99] See id. Return to text.

[100] Id. Return to text.

[101] St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Return to text.

[102] See id. Return to text.

[103] See id. Return to text.

[104] Feinman, supra note 51, at 118. Feinman points out two ways that the employment-at-will doctrine facilitated the development of an advanced capitalist economy: (1) the employment-at-will doctrine maintained the distinction between owners and non-owners of capital, thereby allowing owners of capital (employers) to exercise control over their enterprises; and (2) the employment-at-will doctrine facilitated discharge of employees when turbulent markets or technological changes necessitated a reduced labor force, or even in situations where the employer deemed discharge necessary. See id. at 132-33. Feinman describes these two elements as "essential elements of traditionalist capitalist systems." Id. at 134. Return to text.

[105] Matthew 5:27, 28 (New King James). Return to text.

[106] Proverbs 23:7 (New King James). Return to text.

[107] See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 8, at 33 (5th ed. 1984). Return to text.

[108] One example of this is the distinction between general intent and specific intent, where the latter refers to a special mental element beyond that generally required in reference to the physical act of the crime committed. Common law larceny requires the mental state required for taking and carrying away the property of another, in addition to the extra element of the intent to steal. In a similar vein, common law burglary requires a mental state manifested in breaking and entering into the dwelling place of another and the additional element of intent to commit a felony therein. See generally WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 3.5, at 224 (2d ed. 1986) (distinguishing intent from knowledge and discussing the various "kinds" of intent and the various things intent is used to denote). Return to text.

[109] See MODEL PENAL CODE § 2.02(2)(a)-(d) (1985). Under the Code, "a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently." Id. at § 2.02(1). Return to text.

[110] See generally id. § 2.02(1), (3) (regarding the general requirements of culpability). Return to text.

[111] Thus, under the Model Penal Code, where a statute provides that distinctions between grades or degrees of an offense depend on the mental state of the offender, the Code posits that the grade or degree of the conviction should "be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense." MODEL PENAL CODE § 2.02(10) (1985). The American Law Institute's commentary in section 10 indicates that the drafters saw a correlation between the defendant's state of mind and the value of the defendant's conduct. According to the Code, where the grade of an offense depends on the level of culpability, "a person's culpability should be determined by the lowest level of culpability he exhibits with respect to a material element. The offenses for which the Model Code accepts a departure from this general approach are comparatively few." MODEL PENAL CODE § 2.02(10) commentary at 252 (1985). Return to text.

[112] See KEETON ET AL., supra note 107, § 8, at 34; see also RESTATEMENT (SECOND) OF TORTS § 8A (1965) ("The word 'intent' is used throughout the Restatement . . . to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it."). Return to text.

[113] See KEETON ET AL., supra note 107, § 8, at 34. Return to text.

[114] Id. at 37. Return to text.

[115] For the intentional tort of battery, the first Restatement of Torts defined "intent" as an act done

for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced . . . . [B]ut unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this Section.
RESTATEMENT (FIRST) OF TORTS § 13 cmt. d., at 29-30 (1934). For the tort of assault, intent involves "[a]n act . . . done with the intention of putting the other in apprehension of an immediate and harmful or offensive contact if it is done for the purpose of causing such an apprehension or with knowledge that, to a substantial certainty, such apprehension will result." Id. § 21 cmt. d, at 49. For false imprisonment, a person acts intentionally if "he intend[s] to confine the other or a third person or that he know[s] that such confinement will, to a substantial certainty, result. The actor's motives . . . are immaterial." Id. § 44 cmt. a, at 84.

Although the first and second Restatements of Torts utilize the same definition of intent, they emphasize different facets of the requirement. Under the first Restatement, a person acts with intent when he is aware of the consequences of his acts. See id. This emphasis on knowledge as a measure of intent was limited to specific quasi-criminal torts. See id. On the other hand, the second Restatement emphasizes an objective standard, closer in application to recklessness or an aggravated form of negligence, when a person's subjective state of mind is not as dominant a factor. RESTATEMENT (SECOND) OF TORTS § 8A (1965). However, commentators have observed that as tort law is increasingly viewed as an "instrument of admonition evidenced by the increased use of punitive damages, a defendant's state of mind, as conceived under the first Restatement, will be increasingly relevant in determining the degree of liability imposed." David J. Jung & David I. Levine, Whence Knowledge Intent? Whither Knowledge Intent?, 20 U.C. DAVIS L. REV. 551, 566-67 (1987) (tracing the evolution of the definition of intent under the first and second Restatements).

It is important to note that there are differing views as to whether intent is always tested by a subjective standard or whether it is sometimes sufficient to show that a reasonable person should have known that the consequences of the act were substantially certain to result even if the actor did not intend those consequences. This is sometimes referred to as constructive intent. See id. at 556. A third distinct idea is whether knowledge intent, as opposed to purpose intent, is sufficient for proving intent for tort purposes. See generally id. (examining the second Restatement's treatment of knowledge intent). "Knowledge intent" refers to the idea that the actor subjectively knows that the consequences of his act are substantially certain to result, while "purpose intent' refers to the idea that the actor consciously desires those consequences. See id. at 552 n.1. The first Restatement's position is that knowledge intent is sufficient only for some intentional torts while the second Restatement holds that knowledge intent is sufficient for all intentional torts. Jung and Levine disagree with this interpretation of the second Restatement and argue that it endorses the objective standard, or "constructive intent." See id. at 574-89. Return to text.

[116] See RESTATEMENT (SECOND) OF TORTS § 8A (1965); MODEL PENAL CODE § 2.02(2)(a)-(d) (1985). Return to text.

[117] RESTATEMENT (SECOND) OF TORTS § 8A (1965). Return to text.

[118] See, e.g., Robert Caton, What is a Racist?, NEWSDAY, Apr. 21, 1996, at A44 (commenting that people are not necessarily deemed racists because they believe one race is better than the other, but they are deemed racists because of their social views); Richard Powelson, Are Officers on Duty After Shifts End, KNOXVILLE NEWS- SENTINEL, Mar. 17, 1996, at F2 (noting that the U.S. Department of Justice has concluded that it is not illegal for FBI agents to tell racist jokes while on camping trips). These commentaries testify to the fact that intent as a measure of liability for discrimination cannot possibly account for the various ways in which discrimination exists. Jokes, after all, are not intended to mean anything. Return to text.

[119] 522 F.2d 1091 (9th Cir. 1975). Return to text.

[120] Id. at 1093, 1095. Return to text.

[121] See generally Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 324 (1987) (explaining unconscious racism in terms of Freudian and cognitive psychology). Lawrence points out that "according to Freud, the mind protects itself by denying the emotionally-based ideas and beliefs that conflict with what an individual has intellectually learned is good and right." Id. at 322. He explains that, according to cognitive theory, people attain some of their most strongly held beliefs through the observation and experience of culture, unaware that they are absorbing these lessons. See id. at 323. Return to text.

[122] See Boutros v. Canton Reg'l Transit Auth., 997 F.2d 198, 201 (6th Cir. 1993) (statements calling plaintiff a "camel jockey" and "rug peddler"); see also Lawrence, supra note 121, at 339-44 (discussing examples of unconscious racism in everyday life); The Nation, TIME, Oct. 16, 1964, at 31, 36 ("You have to remember that Americans can't do that kind of work. It's too hard. Mexicans are really good at that. They are built low to the ground, you see, so it's easier for them to stoop." (quoting former U.S. Senator George Murphy speaking of crop harvesting)); Murray Chass, Campanis Is Out; Racial Remarks Cited by Dodgers, N.Y. TIMES, Apr. 9, 1987, at B13 (quoting Al Campanis, vice-president of the Los Angeles Dodgers, who explained that there were no black executives in major league baseball because "they may not have some of the necessities to be, let's say, a field manager or general manager"). Return to text.

[123] See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (finding that suggestions that the plaintiff should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry" may constitute direct evidence of sex-biased decision making); Slack v. Havens, 522 F.2d 1091, 1095 (9th Cir. 1975) (holding that such comments as "colored people are hired to clean because they clean better" and "colored people should stay in their places" are evidence of discriminatory intent). Return to text.

[124] But see Jackson v. Harvard Univ., 721 F. Supp. 1397, 1431 (D. Mass. 1989) (dismissing decision makers' stereotyped comments that "women were not successful in the [Harvard Business School] classroom" as not probative of sex discrimination). Return to text.

[125] Although men and women may in some instances perform the same duties, there still remains a gap between men's and women's wages. As recently as 1992, women in America earned only $0.71 for every dollar earned by men. See The Fair Pay Act of 1994: Hearings on H.R. 4803 Before the Joint Subcomm. of House Educ. and Post Office and Civil Serv. Comm., 103d Cong. 53 (1994) (statement of Michele Leber, Treasurer, National Comm. on Pay Equity). Status also plays a role in equality of promotion in male-dominated vocations, such as law and accounting. See, e.g., Price Waterhouse, 490 U.S. 228, 251 (1989) (finding that sex stereotyping may have played a part in evaluating a female accountant's partnership candidacy); Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (holding that partnership decisions are subject to Title VII). Return to text.

[126] This is reflected in wage disparities, where men earn more than women in the same occupation. See Marion Crain, Between Feminism and Unionism: Working Class Women, Sex Equality, and Labor Speech, 82 Geo. L.J. 1903, 1913-14 (1994) (stating that even within female-dominated occupations, men tend to earn more than women). "Both nursing and bookkeeping are predominantly female occupations, with 93 percent female employment. Male nurses earn an average of 10 percent more than female nurses, and male bookkeepers earn an average of 16 percent more than women bookkeepers." Id. at 1914. Return to text.

[127] See Cynthia B. Lloyd, The Division of Labor Between the Sexes: A Review, in SEX, DISCRIMINATION, AND THE DIVISION OF LABOR 14 (Cynthia B. Lloyd ed., 1975). Return to text.

[128] See generally Derrick A. Bell, Who's Afraid of Critical Race Theory?, 1995 U. ILL. L. REV. 893 (1995) (discussing the argument that blacks are intellectually inferior to whites as found in RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994)). Bell concludes that these arguments enable white Americans to blame the social status of African Americans on inherent low intelligence while avoiding the real cause of inequality—oppressive racism and open hostility toward any form of black success. See id. at 894. Return to text.

[129] See Owen v. City of Independence, 445 U.S. 622, 650 (1980). Return to text.

[130] 426 U.S. 229 (1976). Return to text.

[131] See id. at 232-33. Return to text.

[132] See Davis v. Washington, 348 F. Supp. 15, 17 (D.D.C. 1972). Return to text.

[133] Id. Return to text.

[134] See Davis v. Washington, 512 F.2d 956, 958 (D.C. Cir. 1975). Return to text.

[135] See id. at 960. Return to text.

[136] See id. Return to text.

[137] See id. at 961-63. Return to text.

[138] See id. at 965. Return to text.

[139] See Washington v. Davis, 426 U.S. 229, 239 (1976) ("A purpose to discriminate must be present . . . ." (quoting Akins v. Texas, 325 U.S. 398, 403-04 (1945))). Return to text.

[140] See id. at 247-48. Return to text.

[141] Id. at 240. Return to text.

[142] 442 U.S. 256 (1979). Return to text.

[143] Id. at 279. See also Village of Arlington Heights v. Metropolitan Hous. Corp., 429 U.S. 252, 265-66 (1977) (holding that the racially discriminatory impact of a village's denial of a rezoning application was insufficient to prove an Equal Protection violation). Return to text.

[144] See Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (explaining the difference between the disparate treatment and disparate impact theories); see also Jeffrey A. Blevins & Gregory J. Schroeder, The Civil Rights Act of 1991: Congress Revamps Employment Discrimination Law and Policy, 80 ILL. B.J. 336, 339 (1992) (indicating that section 105 of the Civil Rights Act of 1991 expressly endorses the judicially created disparate impact theory). Return to text.

[145] 426 U.S. 229 (1976). Return to text.

[146] 401 U.S. 424 (1971). Return to text.

[147] Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified at various sections of 42 U.S.C.). Return to text.

[148] See Griggs, 401 U.S. at 431. Return to text.

[149] See id. at 432-35. Return to text.

[150] See id. Return to text.

[151] Recently, secret tape recordings exposed the racist corporate culture of Texaco. Corporate executives allegedly belittled black employees and plotted the destruction of evidence in the race case. See Judge OKs Texaco Bias Settlement, FLORIDA TODAY, Mar. 27, 1997, at 12C. The court approved a $176 million dollar settlement, the largest settlement of its kind in U.S. history. The case reveals the rarity of direct evidence and the blatant invidiousness of discrimination in this corporation. Return to text.

[152] 411 U.S. 792 (1973). Return to text.

[153] Id. at 798. Return to text.

[154] The Supreme Court refers to this as the "prima facie" case. However, in the context of the Court's opinion, the first step is actually a presumption because the required elements are simply basic facts of the rebuttable presumption of the presumed fact of discrimination. Return to text.

[155] See McDonnell Douglas, 411 U.S. at 802. Return to text.

[156] 427 U.S. 273 (1976). Return to text.

[157] See id. at 278-79 (holding that white plaintiffs stated a claim under Title VII where they alleged that the defendant employer discriminated against them on the basis of their race when the employer discharged them for misappropriating cargo and retained a black employee who was charged with the same offense). Return to text.

[158] See id. at 279 n.6. Return to text.

[159] 450 U.S. 248 (1981). Return to text.

[160] See id. at 252-53. Return to text.

[161] See id. Return to text.

[162] See id. Return to text.

[163] See id. Return to text.

[164] Id. (citing McDonnell Douglas and Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n.2, 29 (Stevens, J., dissenting) (1978)). Again, the Court's language is misleading because preponderance of the evidence is a standard of persuasion. Return to text.

[165] See Corbett, supra note 9; Smith, supra note 9. Return to text.

[166] See Malamud, supra note 17. Return to text.

[167] Burdine, 450 U.S. at 256. It is certainly plausible to read Burdine as mandating judgment for the plaintiff, particularly because the Court explains that the plaintiff may "succeed" in satisfying this burden. See id. Return to text.

[168] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). Having the burden of production, the defendant must present admissible evidence that would support a finding that unlawful discrimination was not the cause of the employment action. See id. Return to text.

[169] See id. at 507-08. Return to text.

[170] See id. Return to text.

[171] See id. Return to text.

[172] 431 U.S. 324 (1977). Return to text.

[173] See id. at 358 n.44. Return to text.

[174] See Ramona L. Paetzold & Rafael Gely, Through the Looking Glass: Can Title VII Help Women and Minorities Shatter the Glass Ceiling?, 31 HOUS. L. REV. 1517, 1534-35 (1995) (noting that Title VII's "failure to assist women and minorities adequately in advancement and promotion is due in part [to] persistent stereotypes"). Return to text.

[175] See Mary Stevenson, Women's Wages and Job Segregation, in LABOR MARKET SEGMENTATION 243, 251 (Richard C. Edwards et al. eds., 1975) (suggesting that strong prejudice based upon perceptions of ability as a function of a person's sex leads employers to believe that women are not worth hiring because they would be inefficient workers); see also Lloyd, supra note 127, at 14 (explaining wage differences between individuals and groups from a human capital approach based on differences in productivity). Variables such as education and, particularly, experience are used as stand-ins for productivity. See id. Because women have not been in the labor force as long as men, the human capital they accumulate tends to differ from that of men. Thus, employers are generally willing to pay women less on the assumption that they are less productive than men. See generally Nadine Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination, 21 B.C. L. REV. 345 (1980) (arguing for an expanded concept of discrimination in order to dismantle attitudinal barriers that foster and protect inequality in the workplace). Taub presents social science data to demonstrate why and how sex segregation continues to dominate employment relations in spite of Title VII and argues that decision making based on stereotypes should be recognized as discrimination per se. See id. Return to text.

[176] Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); see also 29 C.F.R. § 1604.2(a)(1)(ii) (pointing out that refusal to hire an individual based on a stereotyped characterizations of the sexes will not be recognized as satisfying the bona fide occupational qualification exception). Return to text.

[177] See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1173 (1995). Return to text.

[178] See DERRICK BELL, FACES AT THE BOTTOM OF THE WELL (1992); Toni Morrison, The Pain of Being Black, TIME, May 22, 1989, at 121. Return to text.

[179] See Kevin W. Saunders, Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition, 49 U. PITT. L. REV. 443, 471-74 (1988) (discussing the repercussions of failed attempts at the crime of solicitation). Return to text.

[180] In Slack v. Havens, 7 Fair Empl. Prac. Cas. (BNA) 885 (S.D. Cal. May 15, 1973), the trial court did just this when it found that Title VII requires only "that a defendant has meant to do what was done; that is, the act or practice must not be accidental." Id. Return to text.

[181] Matthew 12:34 (New King James). Words or actions reflect a state of heart. Return to text.

[182] Matthew 5:28 (New King James). The requisite guilt for the offense exists as soon as an outcome is desired or conceived in the mind. Return to text.

[183] Proverbs 23:7 (New King James). This refers to the conscious awareness or knowledge of what one is doing. Return to text.

[184] See Saunders, supra note 179, at 474-75 (arguing that even without a causal relationship between mind and body, criminal liability may be imposed where there is volition). Professor Saunders uses the analogy of accessory liability and inchoate crimes to support his thesis that mind-body causation is not necessary for culpability under criminal law. See id. at 469-75. Return to text.

[185] See generally MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996) (offering a civic republican interpretation of citizenship and self-government); Richard H. Fallon, Jr., What is Republicanism, and Is It Worth Reviving?, 102 HARV. L. REV. 1695 (1989) (discussing the revival of republicanism and the role it should take in modern government). Republicanism focuses on the "good society" and those things necessary to achieve the good society, such as participation in government, a virtuous citizenry, and the pursuit of the common good. See id. at 1697. Return to text.

[186] See generally Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423 (1995) (arguing that a republican theory of criminal law explains the principles of blame and punishment in criminal justice). Return to text.

[187] See id. at 1425 ("The law has a purpose, an end in view, which is to promote the greater good of humanity. The criminal law serves that end by promoting virtue; that is, by inquiring into the quality of practical judgment displayed by the accused in his actions."). Return to text.

[188] As one scholar explains:

Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional—in the sense that certain outcomes are self-consciously sought—nor unintentional—in the sense that the outcomes are random, fortuitous, and uninfluenced by the decision-maker's beliefs, desires, and wishes.
. . . . . . . [A] large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation. Lawrence, supra note 121, at 322. The requirement for intent has come under significant scholarly attack. Professor Lawrence notes within the specific context of Washington v. Davis, 426 U.S. 229 (1976), that the criticisms of the intent requirement focus primarily on two concerns. See id. at 319. First, the intent requirement places a heavy burden on the wrong side of the dispute; and second, the effects of racial discrimination exist notwithstanding and independent of discriminatory intent. See id. at 319-20. The bulk of criticism has focused on the equal protection arena, but can apply to Title VII cases as well. This is true because intent, under disparate treatment and equal protection is used for the same purpose, despite the language in Davis to the contrary. For criticism of the intent requirement, see David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 938 (1989), and Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 48-53 (1977). Return to text.

[189] Scott v. The London & St. Katherine Docks Co., 159 Eng. Rep. 665, 667 (Ex. 1865) (emphasis added). Return to text.

[190] See KEETON ET AL., supra note 107, § 39, at 244. Return to text.

[191] See id. Controversy exists as to whether this fourth element is required. Prosser and Keeton say it is not a required element and neither the first nor second Restatement requires it. See id. § 39, at 255; William L. Prosser, Res Ipsa Loquitur in California, 37 CAL. L. REV. 183, 222 (1949) (arguing that acceptance of the disputed fourth element of res ipsa loquitur would make "sheer . . . ignorance the most powerful weapon in the law"); William L. Prosser, Procedural Effect of Res Ipsa Loquitur, 20 MINN. L. REV. 241, 260 (1936) ("[N]o policy of the law . . . favor[s] . . . permitting a party who has the burden of proof in the first instance to obtain a directed verdict merely by a showing that he knows less about the facts than his adversary."). Return to text.

[192] See KEETON ET AL., supra note 107, § 39, at 255. Return to text.

[193] See, e.g., Charles E. Carpenter, The Doctrine of Res Ipsa Loquitur, 1 U. CHI. L. REV. 519, 523 (1933-34) (arguing that the fourth element is one of necessity providing a substitute for direct proof of negligence only where such proof is unavailable); Louis Jaffe, Res Ipsa Loquitur Vindicated, 1 BUFF. L. REV. 1, 7 (1951) (arguing that the usefulness of res ipsa loquitur is dependent on the fourth element). Return to text.

[194] See, e.g., P.S. Atiyah, Res Ipsa Loquitur in England and Australia, 35 MOD. L. REV. 337 (1972) (describing the basic views and policy considerations of res ipsa loquitur). Return to text.

[195] 435 A.2d 1150 (N.J. 1981). Return to text.

[196] Id. at 1157. Return to text.

[197] See Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2292-93 (1998) (holding an employer vicariously liable for a supervisor's sexual harassment of an employee through an abuse of his authority). Return to text.

[198] See Imig v. Beck, 503 N.E. 2d 324, 329 (Ill. 1986). Return to text.

[199] See KEETON ET AL., supra note 107, § 40, at 258. Return to text.

[200] See id. Return to text.

[201] See id. Return to text.

[202] See id. at 259; see also Anderson v. Somberg, 386 A.2d 413 (N.J. 1978). Return to text.

[203] See KEETON ET AL., supra note 107, § 40, at 259. Return to text.

[204] St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 514-15 (1993). Return to text.

[205] See Peter M. Panken et al., Employees' New Burden of Proof in Employment Discrimination Cases: The Conservative Supreme Court Speaks, in ADVANCED EMPLOYMENT LAW & LITIGATION 73, 75 (ALI-ABA Course of Study, Nov. 30-Dec. 2, 1989). Return to text.

[206] See Smith, supra note 9, at 301-02. Return to text.

[207] See Corning Glass Works v. Brennan, 417 U.S. 188, 195-96 (1974) (interpreting the Equal Pay Act, 29 U.S.C. § 206(d) (1994), which prohibits sex discrimination in rates of pay); see also 42 U.S.C. § 2000e-2(k) (1994) (requiring the respondent to demonstrate the job relatedness of the challenged action). Return to text.

[208] 29 U.S.C. § 206(d) (1994). Return to text.

[209] See Brennan, 417 U.S. at 195-96 (holding that the employer failed to meet its burden of proving that the difference in wages between male night employees and female day employees was motivated by a factor other than sex). In Brennan, the defendant and employer, Corning, introduced a night shift. See id. at 191. At the time, New York and Pennsylvania law prohibited women from working at night. See id. The male employees that were recruited to fill the new night shift inspectors' jobs demanded and received significantly higher wages than female inspectors working the day shifts. See id. Corning later eliminated all shift differentials, and after the law restricting night work for women was amended, Corning opened up night shift jobs to women with enough seniority to bid for the higher paying jobs as opportunities arose. See id. at 194. However, a new collective agreement that eliminated all future wage differentials preserved a higher wage base for the mostly male night shift inspectors hired under the old order. See id. The Secretary of Labor sought to enjoin Corning from continuing to operate under a pay scale that perpetuated the pay differentials between male and female inspectors working during the night shift and to collect back pay for past violations. See id. Corning argued on appeal that the Secretary had failed to prove an EPA violation because day shift work and night shift work are not performed under similar working conditions as required by the Act. See id. at 197. The Court looked at Corning's job evaluation plans and found that the plans did not treat the time of day worked as a working condition. See id. 202-03. In fact, the Court found that Corning's job evaluation plans treated the jobs equally. See id. Additionally, Corning's job evaluation manager testified that the company did not consider time of day worked to be a working condition. See id. at 203. The Court ultimately held that Corning failed to carry its burden of persuasion that the higher rate paid to male night shift workers was "in fact intended to serve as compensation for night work, [but] rather constituted an added payment based on sex." Id. at 204. Return to text.

[210] See id. Return to text.

[211] See id. Under the EPA, an employer may defend pay differentials for equal work on grounds of "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1) (1994). Return to text.

[212] See Brennan, 417 U.S. at 196. Return to text.

[213] Id. at 196-97. Return to text.

[214] See 42 U.S.C. § 2000e-2(k) (1994).

An unlawful employment practice based on disparate impact is established under this chapter only if -
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity . . . . Id. Return to text.

[215] See id. § 2000e-2(k) (1994); see also 137 CONG. REC. S15498 (daily ed. Oct. 30, 1991) (statement of Sen. Hatch) ("The employer must come forward and meet the burden not only of production . . . but the burden of persuasion as well."). Return to text.

[216] See Chris Engels, Voluntary Affirmative Action in Employment for Women and Minorities Under Title VII of the Civil Rights Act: Extending Possibilities for Employers to Engage in Preferential Treatment to Achieve Equal Employment Opportunity, 24 J. MARSHALL L. REV. 731, 766 (1991). Return to text.


[218] See WHINERY, supra note 217, § 9.04. Return to text.

[219] See JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW, § 2527, at 584 (James H. Chadbourn ed., 1981); MCCORMICK ON EVIDENCE, § 343, at 581 (John William Strong ed., 4th ed. 1992) [hereinafter MCCORMICK]. Return to text.

[220] See WIGMORE, supra note 219, § 2519, at 564; MCCORMICK, supra note 219, § 343, at 581. Return to text.

[221] See generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Return to text.

[222] See JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 314 (Boston, Little, Brown, and Co. 1898); WIGMORE, supra note 219, § 2491, at 305. Return to text.

[223] See FED. R. EVID. 301 (1975). Return to text.

[224] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 518 (1993). Return to text.

[225] See MORGAN, supra note 217, at 34-37; MCCORMICK, supra note 219, § 344, at 586-88. Return to text.

[226] This approach to the effect of presumptions was adopted by the National Conference of Commissioners on Uniform State Laws in promulgating the Uniform Rules of Evidence in 1974. See UNIF. R. EVID. 301(a) (1974) "A presumption imposes on the party against whom it is directed the burden of proving that the non-existence of the presumed fact is more probable than its existence." Id. Return to text.

[227] See H.R. CONF. REP. NO. 93-1587, at 5 (1974), reprinted in 1974 U.S.C.C.A.N. 7098, 7099. Return to text.

[228] See Hicks, 509 U.S. at 518. Return to text.

[229] See MCCORMICK, supra note 219, § 343, at 580. Return to text.

[230] See, e.g., CAL. EVID. CODE §§ 603-606 (West 1997); FLA. STAT. §§ 90.301-.303 (1997). Return to text.

[231] See MCCORMICK, supra note 219, § 343, at 581-82. Return to text.

[232] WHINERY, supra note 217, § 9.01, at 153 (emphasis added). Return to text.

[233] See Advisory Committee Note, Rules of Evidence for the United States Courts and Magistrates, 56 F.R.D. 183, 208 (1973). Return to text.

[234] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Return to text.

[235] Developments, supra note 9, at 1579. Return to text.

[236] Pound, supra note 75, at 454. Return to text.

[237] Id. at 456-57. Return to text.

[238] See Lochner v. New York, 198 U.S. 45 (1905); see also supra notes 77-79 and accompanying text. Return to text.

[239] See, e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc). Return to text.

[240] See id. at 1066-67 (citing Brewer v. Quaker State Oil Refinery Corp., 72 F.3d 326, 331 (3d Cir. 1995); Waldron v. SL Indus., 56 F.3d 491, 502-03 (3d Cir. 1995); Sempier v. Johnson & Higgens, 45 F.3d 724, 732-33 (3d Cir. 1995); Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Return to text.

[241] 44 F.3d 116 (2d Cir. 1994). Return to text.

[242] Id. at 120 (citing DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170 (2d Cir. 1993)). Return to text.

[243] Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir. 1994). Return to text.

[244] See EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks, Daily Lab. Rep. (BNA) No. 186, at 3363 n.3. (April 12, 1994). EEOC guidelines are not controlling upon the courts but "are entitled to great deference." Meritor Savings Bank v. Vinson, 477 U.S. 57, 74 (1986). Return to text.

[245] EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks, Daily Lab. Rep. (BNA) No. 186, at 3363 n.3 (April 12, 1994). Return to text.

[246] See Woods v. Friction Materials, Inc., 30 F.3d 255, 262 (1st Cir. 1994). Return to text.

[247] 442 U.S. 256 (1979). Return to text.

[248] Id. at 279 n.25. Return to text.

[249] 29 F.3d 1078 (6th Cir. 1994). Return to text.

[250] Id. at 1083. Return to text.

[251] Id. Return to text.

[252] See Krieger, supra note 176, at 1164. Return to text.

[253] See generally Anthony D. Taibi, Banking, Finance, and Community Economic Empowerment: Structural Economic Theory, Procedural Civil Rights, and Substantive Racial Justice, 107 HARV. L. REV. 1463 (1994) (examining the economic institutions and structures that produce the material inequalities reflected along racial lines); Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003 (1995) (arguing that status production is essential to understanding race discrimination). McAdams defines discrimination as "a means by which social groups produce status for their members." Id. at 1007. The author's central thesis is that human motivation consists of nonmaterial factors such as self-esteem or status—both group status and individual status—each reinforcing the other. "Discrimination and racist behavior are generally processes by which one racial group seeks to produce esteem for itself by lowering the status of another group." Id. at 1044. For a similar point, see BELL, supra note 178, at 195-200, and Morrison, supra note 178, at 121. "Even the poorest whites, those who must live their lives only a few levels above, gain their self esteem by gazing down on us." BELL, supra note 178, at v. Return to text.

[254] This places minority groups, and particularly African Americans, in an ironic position. While their status as slaves historically precluded them from pursuing the benefits of social and economic mobility, the combined effects of unchecked discrimination and the at-will rule ensures that "the substance of [their lives remains] in another man's hands." FRANK TANNENBAUM, A PHILOSOPHY OF LABOR 9 (1951). Return to text.