Diversity and Discrimination: A Look at Complex Bias
Kotkin, Minna J., William and Mary Law Review
Multiple claims have become a fixture of employment discrimination litigation. It is common, if not ubiquitous, for court opinions to begin with a version of the following litany: "Plaintiff brings this action under Title VII and the ADEA for race, age, and gender discrimination." Equal Employment Opportunity Commission (EEOC) statistics show exponential growth in multiple claims in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment may in fact be rooted in intersectional or "complex" bias: although stereotypes for "women" have somewhat dissipated, those for "older African American women" still hold sway. Complex bias provides a counter-narrative to the currently in-vogue characterization of workplace discrimination as "subtle" or "unconscious."
Despite the common sense notion that the more "different" a worker is, the more likely she will encounter bias, empirical evidence shows that multiple claims--which may account for more than 50 percent of federal court discrimination actions--have even less chance of success than single claims. A sample of summary judgment decisions reveals that employers prevail on multiple claims at a rate of 96 percent, as compared to 73 percent on employment discrimination claims in general. Multiple claims suffer from the failure of courts and intersectional legal scholars to confront the difficulties inherent in proving discrimination using narrowly circumscribed pretext analysis. Applying "sex-plus" concepts does not address the underlying paradox inherent in the proof of these cases: the more complex the claimant's identity, the wider must be cast the evidentiary net to find relevant comparative, statistical, and anecdotal evidence. Overcoming the courts' reluctance to follow this direction requires the development and introduction of social science research that delineates the nuanced stereotypes faced by complex claimants.
TABLE OF CONTENTS INTRODUCTION I. THE RISE AND FALL OF COMPLEX CLAIMS A. The EEOC and Complex Claims B. Empirical Evidence of Complex Claims at the Agency Level C. Demographics and Complex Claims D. An Empirical Look at Complex Claims in the Federal Courts E. Why Multiple Claims Fare So Poorly II. A DOCTRINAL FRAMEWORK FOR COMPLEX CLAIMS: THE "SEX-PLUS" ANALYSIS A. The Origin of "Sex-Plus" in Disparate Impact Cases B. The Expansion to Disparate Treatment Class C. "Sex-Plus" and Sexual Harassment D. Complex Claims Under Different Statutes III. INTERSECTIONAL SCHOLARSHIP IV. PROBLEMS OF PROOF: A LOOK AT TWO CASES A. Jeffers v. Thompson B. Wittenburg v. American Express C. Why Plaintiffs Lost and How They Might Have Won CONCLUSION APPENDIX
When an employee alleges discrimination on the basis of sex, age, and race, is she "crying wolf' or, as one judge put it, "throwing spaghetti at the wall to see what sticks"? (1) Or is she expressing the reality of today's workplace that diversity is tolerated, or may even be valued up to a point, but too much difference opens the possibility that an employee is singled out for disparate treatment?
Take, for example, the following cases. A female assistant stage director at the Metropolitan Opera claims that she was subject to a hostile work environment and discharged on the basis of her age, gender, and sexual orientation. (2) A file maintenance clerk alleges she was terminated because she is an older African American woman who is a Jehovah's Witness. (3) A hospital material distribution manager argues that he was fired due to his Italian ancestry, his gender, and his disability as a result of diabetes. (4) How do we react to these factual claims? …