Academic journal article Boston College Law Review

Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination

Academic journal article Boston College Law Review

Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination

Article excerpt

Introduction

In a 2014 study, fifty-three partners from twenty-two law firms evaluated the same legal memorandum written by a hypothetical third year associate.1 Researchers told twenty-four of the partners believed that the writer was African American and twenty-nine ofthe partners thought that he was Caucasian.2 Asked to score the memorandum on a scale from one to five, those who believed the writer to be Caucasian ranked it, on average, 4.1, while those who believed it to be written by an African American ranked it, on average, 3.2.3 Moreover, there were significant differences between the qualitative comments offered by those reviewing the African American author and those reviewing the Caucasian author.4 The African American received feedback such as, "can't believe he went to NYU!" and "needs a lot of work."5 The Caucasian received comments such as "generally good writer" and "good analytical skills."6 Not only did evaluators rate the African American lower on more subjective writing criteria, they also found significantly more of the intentionally inserted grammar and spelling errors when they believed the writer to be African American.7

This particular study, though small, comports with other data suggesting that African Americans are subject to more scrutiny than their white coworkers.8 This supports the oft-repeated adage that African Americans have to be twice as good to get the same recognition as their white counterparts.9 Because of heightened scrutiny, the small mistakes of African American workers stand out when the same mistake by a white coworker would likely go unnoticed.10 Thus, the common saying that African Americans have to be twice as good is not only rooted in experience, but also supported by empirical research.11 This heightened scrutiny leads to lower evaluations, higher rates of termination, and ultimately higher unemployment rates for African Americans when compared to the white workforce.12

Some have connected the disparities in employment outcomes for African Americans to implicit bias.13 Implicit biases are unconscious beliefs or emotions that an individual associates with members of a given group such as African Americans, the elderly, the disabled, or men.14 These biases are thought to be absorbed unconsciously from social norms and cultural images.15 Individuals can correct their implicit biases over time when made aware of them, but in general they are hard to identify or modify.16 Several studies suggest that nearly everyone holds implicit biases, particularly regarding race and gender.17 Because these biases are usually unknown even to those who act based on them, they are particularly difficult to identify, avoid, and correct.18

In order to redress widespread racial discrimination, the United States Congress passed Title VII of the Civil Rights Act of 1964 ("Title VII"), which is the broadest federal statute that addresses employment discrimination.19 Title VII prohibits discrimination in employment on the basis of race, color, religion, national origin, and sex.20 It applies to many areas of employment, including hiring, firing, compensation, promotions, and "terms, conditions, or privileges of employment."21 Title VII makes it illegal for any employer to make decisions about hiring, termination, promotion, compensation, or the distribution of other substantial employment benefits or burdens on the basis of one of these protected categories.22

Title VII has two main purposes.23 The first goal of Title VII is "to eliminate those discriminatory practices and devices which have fostered raciallystratified job environments to the disadvantage of minority citizens" and to make employment opportunities equally available to all citizens regardless of race, religion, or sex.24 Remedies that deter employers from discriminatory policies and decisions further the goal of eliminating discrimination in the workplace.25 The second goal of the statute is to compensate victims of employment discrimination. …

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