Feminist Judgments and the Rewritten Price Waterhouse

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail. The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths.

Professor Chamallas provides richer detail about the facts underlying the case and the context in which Price Waterhouse made its decision. She embraces an enhanced role for experts to assist the courts in how discrimination occurs. Professor Chamallas also explicitly recognizes that bias may occur even when a particular decisionmaker does not express overt bias. However, there are many more contributions that are worth mentioning.