Disparate Impact and the Unity of Equality Law

Annual Review of Law and Social Science, 2008

Legal conceptions of employment discrimination have become increasingly narrow over the past two decades as the law has adopted a “perpetrator” model of discrimination that emphasizes purposeful intent. This tendency runs counter to social scientific research that documents the pervasiveness of unintentional bias and the persistence of organizational processes that generate workplace discrimination. This narrow legal conception, coupled with a system of employment discrimination litigation that emphasizes individual claims and individual remedies, fails to support the organizational approaches that are most promising for redressing workplace discrimination. We review the literature on employment discrimination law, discrimination litigation, continuing patterns of racial and gender inequality, the organizational bases of discrimination, and the impact of equal employment law on organizations. We conclude by discussing the reasons for and implications of this divergence between law a...

The Sociological Quarterly, 2000

Public Law, 2007

2009

American University Law Review, 1998

Psychology, Public Policy, and Law, 2011

Although scholars agree that traditional forms of discrimination have generally been supplanted by subtler interpersonal manifestations of discrimination, it is yet unknown whether targets of these behaviors or the American judicial branch recognize such negative behaviors as violations of extant law. Extending research and theory, we propose that denigrating messages toward women and ethnic minorities (i.e., microaggressions) emerge in workplace interactions and are sometimes interpreted as discrimination. Specifically, this research explores the presence, severity, and frequency of microaggressions that appear in a random sample of race and gender discrimination cases in federal court dockets since the year 2000. The results suggest that microinsults, microinvalidations, and microassaults are reported in a variety of discrimination claims. However, only overt and intentional forms of microaggressions (microassaults) increased the likelihood that decisions favored plaintiffs. Thus, there may be a disconnect between forms of discrimination perceived by claimants and how those forms are evaluated by the legal system that protects victims of discrimination. This potential misalignment of science and practice is discussed, as are directions for future research.

Law School. I would like to thank David McClure for his research and Jeff Stempel for his encouragement on this project. 1 It states: (a) It shall be an unlawful employment practice for an employer-(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. Sec. 2000e-2 (a) (2000). 2 See e.g., Mark S. Brodin, Ricci v.

Judges J, 2010

Studies consistently show that African Americans face more employment scrutiny and negative employment actions than their white coworkers. Recognizing that much of the explicit racism of the twentieth century has given way to subtle and often unconscious discriminatory biases, this Note argues that current Title VII jurisprudence contains the tools and legal distinctions to provide legal redress for this implicit bias. Discriminatory intent, a requisite showing for plaintiffs bringing Title VII disparate treatment claims, should not be understood to require proof of a particular mental state. Instead, the current law should—and could—simply require that plaintiffs demonstrate a causal link between their membership in a protected class and the adverse employment action that they suffered. Discriminatory actions by employers produce costs for society at large and for individual workers. Employers must therefore pay for the harms they cause, even if the employer did so because of implicit biases. Without employer liability for implicit bias and its discriminatory effects, this Note argues that barriers to equal employment opportunities will persist and victims of discrimination will bear the costs of unfair decisions made by employers.

Stanford Law Review, 1995

Title VII's disparate treatment model of discrimination is premised on the notion that intergroup bias is motivational in origin. This premise, in turn, is based on a number of assumptions regarding the nature of human inference and the respective roles played by cognition and motivation in social judgment and decisionmaking. Applying insights from cognitive psychology, Professor Krieger examines the assumptions about human inference embedded in current disparate treatment theory and questions the premise that discrimination necessarily manifests intent or motive. She suggests that a large number of biased employment decisions result not from discriminatory motivation, as current legal models presume, but from a variety of unintentional categorizationrelated judgment errors characterizing normal human cognitive functioning. Because of the lack offit between the present disparate treatment model and the phenomenon it purports to represent, courts and litigants are presented with a confising array of increasingly ill-defined and questionably premised analytical paradigms. Worse, as currently constructed, it may be exacerbating intergroup tensions and inflating both social and financial adjudication costs. Searching for solutions Professor Krieger explores the legal and policy implications of a cognitive process approach to discrimination and equal employment opportunity and evaluates a variety of modifications to existing equal employment opportunity law. 5. Donohue & Siegelman, supra note 3, at 1019 (citing American Bar Foundation Employment Discrimination Litigation Survey, supra note 3). 6. 411 U.S. 792 (1973). 7. See text accompanying notes 56-67 infra for a discussion of the McDonnell Douglas model. 8. Existing disparate treatment jurisprudence in many ways equates a finding of pretext in plaintiff's favor with a finding that the employer has lied about the reasons for its decision.

1990

III. THE ROLE OF BURDENS OF PROOF IN MEETING THE PURPOSE OF THE DISPARATE IMPACT THEORY 58 A. Burdens of Production and Burdens of Persuasion 58 B. Allocation of the Burdens of Proof in a Disparate Treatment Case 62 C. Allocation of the Burdens of Proof in a Disparate Impact Case 67 IV. FUTURE OF THE DISPARATE IMPACT THEORY 83 A. The Court's Merging of the Disparate Impact Theory into the Disparate Treatment Theory 83 B. The Continuing Need for the Disparate Impact Theory 88 C. The Disparate Impact Theory's Chances for Survival 90 I NTRODUCTION Two primary theories of employment discrimination have developed under Title VII of the Civil Rights Act of 1964. 1 The more traditional theory is the disparate treatment theory, which prohibits intentional discrimination on the basis of a protected characteristic. The disparate treatment theory essentially prohibits members of certain groups from being treated differently from other persons. 2 This theory reflects an "equal treatment" notion of equality, which suggests that equality is achieved if persons of different groups are treated in the same manner.' ' 42 U.S.C. § § 2000e to 2000e-15 (1988). The United States Supreme Court described the disparate treatment theory in Teamsters v. United States: "Disparate treatment" ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly disparate treatment was the most obvious evil that Congress had in mind when it enacted Title VII.

2011

Stanford Law Review

Sociological Inquiry, 2004

We examine changes in the nature and rate of complaints filed with the federal Equal Employment Opportunity Commission (EEOC) in the past 35 years. The EEOC's role has shifted over this period from ensuring job access for racial minorities to providing diverse protections for a much broader class of incumbent workers. We first describe trends in discrimination complaints, most notably the shift from racial discrimination to other bases of discrimination, and develop a conceptual model of choice among socially structured alternatives to account for them. We then test the model with a time series analysis of changes in the complaint rate among different worker groups to evaluate the relative importance of legal, political, and socioeconomic determinants of civil rights complaints. Net of changes in the political climate, benefit compensation, inequality, and education levels, we find that legal changes and group-specific unemployment rates are the strongest and most consistent determinants of the rate of race, sex, and total discrimination complaints. Our results suggest that people will bear the costs of filing a complaint when legal options are relatively attractive and when employment options on the external labor market are unattractive.

The American Economic Review, 1993