The Next Generation of Disparate Treatment: A Merger of Law and Social Science

By Gomez, Michelle R. | The Review of Litigation, Summer 2013 | Go to article overview
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The Next Generation of Disparate Treatment: A Merger of Law and Social Science


Gomez, Michelle R., The Review of Litigation


I. Introduction 554

II. The Law 555

A. The Civil Rights Act of1964 and Title VII 555

B. Disparate Treatment Under Title VII: The Burden-Shifting Framework 556

C. Intentional Animus, Rational Discrimination and Stereotyping: The Development of Disparate Treatment Jurisprudence 562

1. The Beginning of Mixed-Motive Analysis 564

D. The 1991 Amendments, Codifying Mixed-Motive Analysis, and Evidentiary Burdens 564

III. The Science: Discrimination and Decision Making 566

A. Causation v. Intent 566

B. The Decision-Making Process Dissected 568

1. Social Cognition Theory and the Source of Bias 568

2. Unconscious Bias 570

C. Mental Contamination 572

D. Mental Correction: What Works and What Doesn't 575

IV. A Way Forward 577

A. Exposure Control, Objective Criteria and Promoting Workplace Diversity 577

1. "What's in a Name?" 577

2. Objective Criteria 578

3. Controlling the Environment 579

4. Workshops, Team Building, and Training 580

B. Prevention as an Affirmative Defense to the Mixed-Motive Framework 580

C. Judgment for the Plaintiff When an LNR Has Been Disproved Under the Traditional Disparate Treatment Framework 581

V. Counterarguments and Objections 583

A. Exposure, Environment, and Evaluations: Would Employers Lose Control? 583

B. An Ounce of Prevention Worth a Pound of Defense? 585

C. Destabilizing Legal Doctrines that Rely on an Intent Standard? 587

VI. Conclusion 588

I. Introduction

Title VII operates to prohibit four main types of employment discrimination: individual disparate treatment, systemic disparate treatment, disparate impacts on certain protected groups, and harassing conduct at work. While antidiscrimination law under Title VII is expansive, the focus of this analysis will be to discuss the doctrinal framework necessary to establish a disparate treatment claim. In particular, this Note will address the two most critical words in establishing liability in a disparate treatment case-what it means to discriminate because of a protected characteristic. While courts have historically interpreted "because of' to entail a certain degree of awareness or control on the part of the discriminator-that he is consciously acting on his prejudice-social science gives us reason to reexamine the narrow lens through which we are viewing disparate treatment law. The goal of this Note is to explain the current disparate treatment framework under Title VII; to show how social science undermines judicial assumptions about the process of decision making; to propose solutions that might prevent biased errors before they happen; to correct problems when they do arise; and to shift the legal presumption when a defendant fails to carry his or her burden.

Two important issues are necessarily implicated throughout this Note. The first concerns how we view the role of antidiscrimination law and, more specifically, Title VII. We must ask: What is the goal of Title VII and how can we implement its protections in a fair and equitable way? Second, we must address the harms that result from discrimination, and whether we should hold employers liable for discriminatory practices of which they were, in some sense, unaware. This raises the question: When the requisite harm occurs, but the necessary mental state is lacking, how should we go about trying to remedy the harm suffered by plaintiffs? These questions are complex and largely involve normative conceptions of how we view the law as a tool for social change and remedial action. This Note will attempt to strike a balance between properly addressing the harms suffered by plaintiffs who have experienced discrimination and the interests of employers to avoid being unfairly labeled as prejudiced. To do this, we must embrace the spirit of the law, remain loyal to the text of Title VII, and correct erroneous judicial speculation about the source of human decision making.

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