St. Mary's Honor Center v. Hicks eliminated the effect of the pretext test and the distinction between standard and pretext cases. Desert Palace interpreted the motivating-factor test in a way that eliminates the distinction between mixed-motives and non-mixed-motives cases. The point is not that the Court has decided the cases incorrectly or with an inappropriate bias. Rather, it is that eliminating the distinctions between the different types of cases suggests that all disparate treatment cases should be treated the same. The result of these decisions will likely be a reversion to an older litigation model in which trial judges are not given specific rules to use to resolve specific types of disparate treatment cases, but instead have substantial discretion to dispose of all types of disparate treatment cases as they see fit. This article explores the Court's recent simplification and standardization of Title VII disparate treatment cases. Part I reviews the Court's pretext jurisprudence. Part II reviews the Court's mixed-motives jurisprudence. Part III explains how the Court's pretext and mixed-motives jurisprudence implicitly eliminate the distinctions among pretext, mixedmotives, and standard disparate treatment cases. Finally, Part IV explains why the likely result of this collapse will be a shift in discretion to trial judges.
Henry L. Chambers, The Effect of Eliminating Distinctions Among Title VII Disparate Treatment Cases, 57 SMU L. Rev. 83 (2004).