Disparate Treatment- McDonnell Douglas/PWC/Desert Palace Forum

[AJS30]

Do you still apply these frameworks today or when doing your analysis you go straight to the Civil Rights Act of 1991?

[k5220]

You have to run it both ways. Mixed motive analysis under the CRA of 1991 limits the plaintiff's recovery if the employer can show that it would have made the same decision anyway, so you want to run through the McDonnell Douglas / Burdine proof structure to see if you can prove it that way too. (Some plaintiffs lawyers will strategically choose not to put mixed motive before the jury to prevent them from splitting the difference).