Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice

If the national policy of eliminating discrimination is to be achieved, the courts--to whom the major responsibility for effectuating this goal is delegated--must establish a coherent framework for allocating the burdens of pleading and proof that provides "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination."' The purpose of this Article, therefore, is to propose such a coherent approach to the allocation of the burdens of pleading and proof in discrimination cases. Towards this end, part II of the Article examines the definitional and operational effect of the terms and concepts that courts traditionally use to allocate burdens, since a clear understanding of both the problem and the analytical frame-work suggested herein requires familiarity with the semantics of the burden of proof concepts. Part III then identifies the problem and its sources and considers the statutory as well as the constitutional substantive discrimination theories enunciated by the Supreme Court. Part IV of the Article discusses the basic propositions for the suggested approach, and part V explores the procedural and public policy reasons for their adoption.