The Replacement Dilemma: An Argument for Eliminating a Non-Class Replacement Requirement in the Prima Facie Stage of Title VII Individual Disparate Treatment Discrimination Claims

Although manifestations of discrimination in the workplace have changed greatly over time, employment discrimination continues to be a tremendous problem in society. By enacting Title VII of the Civil Rights Act of 1964 (“Title VII”), Congress shielded employees from arbitrary adverse employment actions arising from discrimination related to race, color, religion, sex, or national origin. Three years later, Congress passed the Age Discrimination in Employment Act (“ADEA”), guaranteeing the same protections against discrimination based on age.4 Finally, the Americans with Disabilities Act (“ADA”), passed in 1990, prohibited discrimination based on personal disability. Ten years after Congress enacted the Civil Rights Act, the Supreme Court developed a comprehensive framework for presenting and analyzing these cases. In McDonnell Douglas Corp. v. Green, the Court outlined a three-part sequence for handling individual disparate treatment claims. First, the plaintiff presents a prima facie case of discrimination. Next, the burden shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the adverse employment action. Finally, the plaintiff has the opportunity to prove that the employer’s allegedly nondiscriminatory reason is a pretext for discrimination.