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Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but also substantially undermines the efficacy of the nation's laws against discrimination.

This article offers a proposal for improving summary judgment doctrine in employment discrimination claims, a proposal that preserves plaintiffs' right to trial while respecting defendants' legitimate rights and the judicial system's efficiency concerns. This proposal encourages courts deciding motions for summary judgment in employment discrimination claims to employ a different approach from that used in deciding summary judgment motions in other civil suits. Anderson v. Liberty Lobby requires courts to consider the substantive law when ruling on motions for summary judgment. Courts must apply the construct set forth in McDonnell Douglas Corp. v. Green which defines the proper allocation of burdens of proof and production in employment discrimination cases. Proper application of the McDonnell Douglas standard requires courts to impose a heightened burden on discrimination defendants moving for summary judgment. In ruling on whether a defendant has met this heightened burden, courts should use a sliding-scale approach. That is, the quantum and quality of the defendant's evidence should govern the quantum and quality of the evidence needed for a plaintiff to defeat the motion.

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34 B.C. L. Rev. 203 (1993).