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

Boston College Law Review, Apr 2017

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.

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

Discriminator y Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination Amelia M. Wirts 0 1 2 3 0 Thi s Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Boston College Law School 2 Amelia M. Wirts, Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination , 58 B.C.L. Rev. 809, 2017 3 Part of the Civil Rights and Discrimination Commons, Labor and Employment Law Commons Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Law and Race Commons, and the Law and Society Commons Recommended Citation - Abstract: Studies consistently show thatAfricanAmericans 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 thathey suffered. Discriminatory actions by employers produce costs for society at large and for individual workers. Employers musttherefore 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. 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 AfricanAmerican and twenty-nine of the 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 1 ARIN N. REEVES, WRITTEN IN BLACK & WHITE: EXPLORING CONFIRMATION BIAS IN RACIALIZED PERCEPTIONS OF WRITING SKILLS 2 (2014). Sixty partners agreed to complete the study, but only fifty-three of the sixty did. Id. Of the sixty, “23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were Caucasian.” Id. 2 Id. Partners were asked if they would participate in a study regarding the abilities of young lawyers, and they were giving information regarding the author. Id. All sixty were told that the author was Thomas Meyer, a third-year associate and a New York University graduate. Id. Half were told that he was African American and half were told that he was Caucasian. Id. 3 Id. at 3. There was no correlation between the gender or race/ethnicity of the reviewer and the difference in scoring, though women tended to find more errors and provide more feedback overall. Id. at 4. offered by those reviewing the African American author and those reviewing the Caucasian author. 4 TheAfricanAmerican 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 r ate the African American lower on more subjective wri ting 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 whcioteworkers.8 This supports the oft -repeated adage that AfricanAmericans 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 unn oticed.10 Thus, the common saying that African Americans have to be twice as good is not only rooted inexperience, but also supported by empirical ersearch.11 This heightened scrutiny leads to lower evaluations, higher rates of termination, and ultimately higher unemployment rates forAfricanAmericans when compared to the white workforce.12 4 Id. at 3. 5 Id. 6 REEVES, supra note 1, at 3. 7 Id. 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Amelia M. Wirts. Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination, Boston College Law Review, 2017, pp. 809, Volume 58, Issue 2,