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William Corbett, Unmasking a Pretext for Res Ipsa Loquitur:  A Proposal to Let Employment Discrimination Speak for Itself,  62 Am. U.L. Rev. -- (forthcoming, 2013), available at SSRN.

In this article Professor William Corbett does an excellent job of explaining the “tortification” of discrimination law and how the McDonnell Douglas analysis can be viewed as a form of the res ipsa loquitur doctrine. Professor Corbett’s analysis of this issue provides a fresh look at a well-known tort doctrine, and its possible application to discrimination law.

In the first part of his article, Professor Corbett examines how employment discrimination has been transformed by tort law over time. He explains how, subsequent to the passage of Title VII, tort law has been “vigorously infused” into discrimination doctrine. Professor Corbett traces how this transformation has occurred over time — looking at how tort law principles can be found in Price Waterhouse v. Hopkins and section 1981a of the Civil Rights Act of 1991. He also demonstrates how the move toward tort law can be found in the types of claims being pursued by plaintiffs, as well as the limited availability of the class action mechanism for workforce victims. Finally, looking at a number of more recent Supreme Court cases, he shows how tort principles now play a major role in employment discrimination cases.

In the next section of the paper, Professor Corbett provides a unique look at how the three part burden shifting framework of McDonnell Douglas is “modeled on a tort analysis.” More specifically, he examines the connection between this framework and res ipsa loquitur, exploring the similarities between the two analyses. He concludes that res ipsa loquitur has much in common with McDonnell Douglas, “given its nebulous nature, reticence of courts to ease the usual litigation burdens of plaintiffs without justification, and the skepticism about the inference or presumption to be drawn based on surrogate questions. . . the doctrine is more trouble than it is worth.”

In the final section of the paper, Professor Corbett argues that—given the similarities (and inherent problems) of res ipsa loquitur and McDonnell Douglas—the time has come to do away with this framework. He maintains that the problems and confusion created by McDonnell Douglas suggest that the framework should be replaced. In its place, Professor Corbett advocates for mixed-motives analysis for employment discrimination claims. He explains why a mixed-motives analysis would be preferable for workplace claims, and examines the specific issues that would arise with attempting to import this analysis to age cases. Professor Corbett further examines the implications of his proposal for the same-decision defense.

This piece—just like the superb scholarship of Charles Sullivan and Sandra Sperino on the role of tort law in employment discrimination—provides a novel look at how we approach workplace misconduct. The idea Professor Corbett explores is fascinating and has practical implications: if the most significant test in employment discrimination law shares so much with a troubled tort doctrine, should we continue to embrace it? I personally disagree with Professor Corbett’s ultimate conclusion that we should abandon the McDonnell Douglas framework. Though I may be in the minority, in my view, there is a lot of value to the structure it creates, though it admittedly has its shortcomings. This is simply a difference of opinion, however, and Professor Corbett has identified and beautifully examined a critical parallel between employment discrimination and tort law. The importance of how the principles of tort law have found their way into workplace claims cannot be overstated. This piece provides a helpful look at how one specific tort doctrine in many ways parallels the most important employment discrimination framework. The question now is whether, “[l]ike the infamous barrel that fell from the warehouse and spawned res ipsa loquitur, McDonnell Douglas needs to be cast out of employment discrimination law.”

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Cite as: Joseph Seiner, Res Ipsa Loquitur & Employment Discrimination?, JOTWELL (February 13, 2013) (reviewing William Corbett, Unmasking a Pretext for Res Ipsa Loquitur:  A Proposal to Let Employment Discrimination Speak for Itself,  62 Am. U.L. Rev. -- (forthcoming, 2013), available at SSRN),