A Chain of Inferences Proving Discrimination

There are three elements in a plaintiff's prima facie case of individual disparate treatment discrimination: (1) the plaintiff suffered an adverse employment action, (2) the action was linked to the defendant, and (3) the defendant's action was motivated by a protected characteristic of the plaintiff. The third element-the defendant's intent to discriminate-is the most challenging to prove. Thus, most individual dis-parate treatment discrimination cases, and this Article, focus on this inquiry. Part of the difficulty is that the second element-the level of linkage between the plaintiff's harm and the defendant's action-has been tied up in the discussion of intent. After the Supreme Court decisions in Reeves and Desert Palace, however, it is possible to clarify the linkage question and identify the array of claims that can be used to prove discriminatory intent. Claims that can be used to prove discriminatory motivation or intent include, but are not limited to, a straightforward claim of unequal treatment, a defendant's admission that it discriminated, an action based on stereotypes, and a McDonnell Douglas approach. Where the McDonnell Doug-las approach is used, proof may take several forms: proof that the defendant lied in its assertion of a legitimate, non-discriminatory reason for its action; proof that completely knocks out the defendant's explanation; or proof that eliminates any likely nondiscriminatory reasons. In sum, after decades of uncertainty, a general approach to proof of individual disparate treatment cases may finally be emerging. Hall University. I want to thank my co-authors, Charlie Sullivan and Rebecca Hanner White, for their tremendous insights over the years and particularly for their help in conceptualizing this article. Also, I want to thank the faculties of the Loyola-Chicago and Marquette Law Schools for their helpful comments during and after my presentations at faculty workshops.