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
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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
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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. Twe (...truncated)