Chaos or Coherence: Individual Disparate Treatment Discrimination and the ADEA

Individual disparate treatment law appears to be in a chaotic state. The one clear thrust is that the Supreme Court's jurisprudence in the area, and even Congress's most recent amendments to Title VII, no longer govern the field alone. This chaos, however, may be the prelude to a new coherence. That possibility is the point of this Article, which will explore it from the viewpoint of the Age Discrimination in Employment Act ("ADEA").\nPart I sets the stage by describing the initial failure of Justice Brennan's attempt in Price Waterhouse v. Hopkins to supplant the preexisting framework established in McDonnell Douglas Corp. v. Green with a new framework. The actual effect of Price Waterhouse was not only to create a new, alternative approach to analyzing individual disparate treatment cases, but also to limit the application of that approach to a small subset of cases involving "direct" evidence of discrimination. Even Congress's 1991 amendments to Title VII did not have the immediate effect of removing the McDonnell Douglas framework as the general approach applied to most cases. Part II traces recent developments among the courts of appeals. These decisions have taken a number of different approaches that have differing effects on the existing law of individual disparate treatment discrimination. The most significant decisions have supplanted the McDonnell Douglas approach in Title VII cases with a modified Price Waterhouse approach. Part III then addresses whether such new approaches should be applied in individual disparate treatment cases in which plaintiffs have asserted age discrimination under the ADEA. Finally, Part IV looks to the consequences of these developments in terms of the remedies available in age discrimination cases.