Document Type



This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintiffs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary—why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination.

Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how courts "chip away" at pretext under Title VII's analytical evidentiary scheme. Specifically, this Article explores various evaluative constructs that have evolved from the courts' interpretive rulemaking in the context of the litigation process with particular emphasis on the summary judgment stage. Using one sub-rule—the same-actor principle—as a case study reference, the Article embeds a striking example of how procedure and the substance of Title VII collide to distort the pretext prong. This evidentiary dilution with its procedural reinforcement straightjackets plaintiffs' efforts to prove pretext for discrimination. My premise is that pretext is now the endangered element under the disparate treatment framework—hollow and forceless in evidentiary value.

This Article situates the courts' interpretive rulemaking within the larger problem of establishing the contours of discriminatory workplace behavior and theorizes on the elusive nature of discrimination. Exposing the myths about fairness and justice embedded in the rhetoric of Title VII and interpretive case law, I demonstrate the necessity of redefining discrimination and employing a more workable evaluative framework for circumstantial evidence claims of workplace discrimination. Accordingly, this work can be seen as contributing to a larger movement to redefine what constitutes discrimination, in part, conceptualizing workplace bias as an amalgamation of complex human, cultural, and organizational dimensions. Straddling procedure and substance, this Article highlights the complexity of proving discriminatory bias in the modern employment setting.