Abstract
The extent and nature of discrimination in American life remains a deeply contentious issue. Many doctrinal issues hinge on judicial assumptions about the prevalence of discrimination, and every Supreme Court nominee’s opinions on this matter are closely scrutinized. Yet only a small set of discrimination cases depend on substantive doctrinal issues. The typical employment discrimination case seems to raise a simple factual question: did a particular employer treat a particular employee differently because of membership in a protected group? The larger societal pattern of discrimination—its manifestations, causes, and frequency—appears to be untethered to the facts of that dispute, failing the threshold “relevance” requirement of evidence law. Even if evidence of the societal pattern of discrimination were relevant, it might seem substantially more prejudicial than probative, since no individual defendant should be held responsible for the wrongs of society as a whole.
Recommended Citation
Weiss, Deborah M.
(2011)
"The Impossibility of Agnostic
Discrimination Law,"
Utah Law Review: Vol. 2011:
No.
4, Article 10.
Available at:
https://dc.law.utah.edu/ulr/vol2011/iss4/10