Textualism as a Pro-Employee Force in Employment Discrimination Law

Textualism has gotten a bad rap, at least insofar as employment discrimination law is concerned. Derided by antidiscrimination scholars as an interpretive smokescreen concerned less with faithfully construing statutory text than reliably yielding pro-employer results, textualism is understood to pose an existential threat to employment discrimination law. This Article challenges academic orthodoxy by demonstrating that, in practice, textualism is correlated with employee-favorable outcomes. Specifically, the Article examines a subset of the Supreme Court’s major employment discrimination cases over the past thirty years and finds that textualism is twice as likely to be associated with outcomes benefiting employees than it is with outcomes benefiting employers.

It then considers this finding’s implications for an atextual evidentiary framework that has bedeviled employment discrimination plaintiffs for more than half a century: the multi-step, burden-shifting regime of McDonnell Douglas Corporation v. Green.