Rethinking Discrimination Law, Essay Example

In her law review originally published in the Michigan Law Review, Cincinnati law professor, Sandra Sperino, examines the field of legal discrimination and suggests that the present framework of the law in this area needs restructuring. In the writing of her article, Sperino adopts an approach that is much different than most law review articles on the subject. She does not attempt to clarify or explain the state of the law, instead, she takes the approach that a good number of potentially viable cases are not being litigated due to the fact that the courts have become accustomed to looking at all discrimination cases through the same looking glass and if the facts do not fit into a specific framework they are never allowed to go forward.

Sperino argues that the courts have developed specific frameworks or rubrics to evaluate discrimination claims. What has resulted is that courts examine new cases against these established frameworks or rubrics and if the facts of the case do not fit neatly into the framework of prior successful discrimination cases then these new cases are not permitted to go forward and are subject to dismissal or summary judgment. On many occasions, the cases that are dismissed have a statutory basis and should be litigated but because the facts are unusual or the issue is one of first impression they are discarded. What has occurred, Sperino argues, is that because the courts are concentrating so heavily on the framework of the cases, they are tending to lose sight of the purpose of discrimination law and that new theories of discrimination are being ignored.

In the course of her article Sperino offers a number of examples of how she feels this is occurring. One of the more glaring examples is in regard to the courts not considering any claims involving negligent discrimination. Due to the fact that claims based on negligent discrimination do not fit into the framework of traditional discrimination actions the courts are not allowing such actions to proceed. In Sperino’s view the courts are blinded by the fact that discrimination can occur in untraditional ways and that it can occur negligently.

The discrimination cases involving workplace retaliation are of particular concern for Sperino and offer perhaps the best example of how the courts have placed discrimination cases into frameworks. In Sperino’s view the courts spend far too much of their time examining how the conduct of the employer fits into the statutory language and not enough time to examine the underlying conduct that led to the claim of retaliation. Because the courts spend so much time making sure that the defendant’s conduct fits into a statutory prohibition that when a clear example is not presented conduct that should be prohibited is not and claims that should be litigated are dismissed.

Sperino does not limit her criticisms to the courts. Although she places most of the problem with the courts in that they have developed frameworks and rubrics that are simply too limiting she also places on Congress for allowing too many discrimination statutes to exist without any real attempt to unify them. This condition creates too much confusion and complexity that does not need to present but Sperino quickly suggests that the primary problem lies with the courts.

Sperino makes a strong argument that the field of employment discrimination has lost its focus and needs to reorganized and simplified. The emphasis she states should be on the employee and the adverse effects of what he or she has occurred and not on ensuring the case fits into some predefined legal framework. The courts, and Congress, need to redefine the fundamental purpose of discrimination law and allow the cases litigating such issues to grant the proper and just relief. Sperino’s argument is a strong one in light of the history these type of cases. In recent years it has become increasingly more difficult for employees to establish claims that the courts will allow to move forward and, as a result, employers are being allowed to engage in conduct that should be prohibited. Unfortunately, the courts present use of frameworks and rubrics works to the advantage of the employers and employees are being caught in the vacuum. Sperino’s suggestions regarding the existing frameworks and the need for the courts and Congress to refocus on the main issues are appropriate and should prove to be helpful if the proper attention is afforded the matter of employment discrimination.