Liability for unconscious discrimination? a thought experiment in the theory of employment discrimination law

Hastings Law Journal

Volumn 62, Issue 1, 2010, Pages 67-101

  Shin, Patrick S ^a  

^a NONE

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EID: 78751554245     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (220)

1. For a review of the literature, see Katherine Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 VA. L. REV. 1893, 1904-20 (2009),
2. and Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945 (2006).
3. See generally Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 5-7 (2006);
4. Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.C.L. L. REV. 91 (2003)
5. Christine Jolis & Cass R. Sunstein, The Law of Implicit Bias, 94 CALIF. L. REV. 969 (2006)
6. Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 CALIF. L. REV. 1063 (2006);
7. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995)
8. Ann C. McGinley, Viva la Evolucion!: Recognizing Unconscious Motive in Title VII, 9 CORNELL J.L. & PUB. POL'Y 415 (2000)
9. David Benjamin Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899 (1993)
10. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001)
11. Amy L. Wax, Discrimination as Accident, 74 IND. L.J. 1129 (1999).
12. Title VII of the Civil Rights Act of 1964 §703(a), 42 U.S.C. §2000e-2(a) (2006).
13. See Samuel R. Bagenstos, Implicit Bias, "Science," and Antidiscrimination Law, 1 HARV. L. & POL'Y REV. 477, 491 (2007) ("Science does not defeat the implicit bias law-reform program, but science does not establish the case for that program, either. That program depends on a normative judgment that discrimination is not about fault but about a social problem-a normative judgment that is deeply contested among judges and policymakers.").
14. See id.
15. See Amy L. Wax, The Discriminating Mind: Define It, Prove It, 40 CONN. L. REV. 979, 981-86 (2008).
16. See Bagenstos, supra note 2, at 6 (describing the test).
17. For analysis in support of the predictive value of the IAT, see Anthony G. Greenwald et al., Understanding and Using the Implicit Association Test: III. Meta-Analysis of Predictive Validity, 97 J. PERSONALITY & Soc. PSYCHOL. 17 (2009). For a study that raises some critical questions,
18. see Andrew Karpinksi & James L. Hilton, Attitudes and the Implicit Association Test, 81 J. PERSONALITY & SOC. PSYCHOL. 774 (2001). For an overtly skeptical perspective,
19. see Hal R. Arkes & Philip E. Tetlock, Attributions of Implicit Prejudice, or "Would Jesse Jackson 'Fail' the Implicit Association Test?," 15 PSYCHOL. INQUIRY 257, 264, 270 (2004) (objecting to reaction time data on implicit bias on the grounds that it may reflect cultural stereotypes instead of prejudice, negative responses may be due to emotions unrelated to prejudice, and that sometimes data showing prejudice can also show rational behavior),
20. and Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 OHIO ST. L.J. 1023, 1023 (2006) (arguing that research on implicit bias needs to include a more "rigorous investigation of... error rates," an analysis of the predictive utility of measuring implicit bias in the workplace, and a discussion of social consequences of changing requirements for proving bias).
21. See generally Bruce Bower, The Bias Finders, 169 Sci. NEWS 250 (2006) (reporting disagreement among psychologists about what exactly can be inferred from IAT findings).
22. See Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L. REV. 997, 1034-36 (2006).
23. Cf. Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56 ALA. L. REV. 741, 774-77 (2005) (discussing practical difficulties);
24. Mitchell & Tetlock, supra note 8, at 1067-70 (asserting the claimed link between unconscious discrimination and discriminatory behavior have "little legal significance");
25. Franita Toison, The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, 33 DEL. J. CORP. L. 347, 421 (2008) (observing practical challenges to solutions proposed by scholars).
26. For examples of such proposals, see Ivan E. Bodensteiner, The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination, 73 Mo. L. REV. 83, 108-28 (2008) (suggesting procedural litigation reforms to help account for implicit bias), Green, supra note 2, at 144-56 (calling for "structural" workplace reform as a response to the problem of implicit bias), and Sturm, supra note 2, at 479-522, 553-61 (same).
27. Kang & Banaji, supra note 2, at 1108-15.
28. Id. at 1077 ("We are not arguing that implicit bias-induced discrimination should produce the same legal liability as explicit animus-driven discrimination under current... federal antidiscrimination statutes.").
29. Cf. Bagenstos, supra note 4, at 492 (arguing that some forms of skepticism about the legal implications of implicit bias research are really normative arguments about the scope of actionable discrimination, and therefore calling for "a renewed attention to antidiscrimination theory").
30. For an expansive and insightful examination of the meaning of "unconscious" and the question whether the unconscious "exists," see MICHAEL S. MOORE, LAW AND PSYCHIATRY: RETHINKING THE RELATIONSHIP 126-47, 249-80 (1984).
31. I do not venture any claim about the metaphysics of psychological or mental states, and I daresay my discussion does not depend on any particular thesis about the nature of the relation between mental states and physical brain states.
32. Here, again, I wish to avoid any entanglement in philosophical debates about the metaphysics of mental causation. I hope it will suffice to stipulate that I am taking a broadly functionalist approach to the nature of mental states-an approach under which we can understand mental or psychological states in terms of their functional roles in thought and behavior, independent of any underlying thesis about how such states might be realized in or reduced to physical brain states.
33. See MOORE, supra note 15, at 35.
34. I add "unable to make himself aware" to distinguish mental states of which a person might not presently be conscious, but of which the person could become aware if she made an effort to direct her attention to them. This sort of temporarily latent mental state, for example, a suppressed state of hunger, is not unconscious in the sense that makes implicit bias problematic. Cf. id at 130 (using the Freudian term "preconscious" to refer to this simple sense of "unconscious"). In the sense of unconscious that is relevant to the problem of implicit bias, to say that we had certain unconscious mental states means that "we are not able to recall them at all, even if we do direct considerable attention to the question of what they were." Id. at 131.
35. Michael Moore suggests, in a similar vein, that one thing that we might mean when we say that a person has a particular "unconscious mental state" is "that the holder of the mental state does not have the capacity to recognize the state that he is in; he cannot describe it even if he attempts to direct his attention to it." Id at 129.
36. For a discussion of empirical support for this possibility, see David L. Faigman et al., A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389, 1404-06 (2008) ("[S]elf-generated explanations of one's own thought processes are often no more accurate than that of outside observers who have little knowledge of the mental content of another person.").
37. For a concise overview of the social science research providing evidence of the prevalence of this sort of "dissociation" between self-professed attitudes and behavior, see Gary Blasi, Default Discrimination: Law, Science, and Unintended Discrimination in the New Workplace, in 3 NYU SELECTED ESSAYS ON LABOR AND EMPLOYMENT LAW: BEHAVIORAL ANALYSES OF WORKPLACE DISCRIMINATION 3, 6-12 (Mitu Gulati & Michael J. Yelnosky eds., 2007).
38. Title VII of the Civil Rights Act of 1964 §703(a), 42 U.S.C. §2000e-2(a) (2006).
39. Michael Selmi has noted that the term "unconscious discrimination" is vague and could potentially be used to refer to any kind of "subtle" discrimination not manifested in the form of overt racism.
40. See Michael Selmi, Response to Professor Wax: Discrimination as Accident: Old Whine, New Bottle, 74 IND. L.J. 1233, 1236 (1999). I am not using the term in this loose way, but rather to refer specifically to differential treatment influenced by the psychological operation of implicit bias of which the actor is unaware.
41. See, e.g., Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 1603-05 (2006)
42. Antony Page & Michael J. Pitts, Poll Workers, Election Administration, and the Problem of Implicit Bias, 15 MICH. J. RACE & L. I, 21-33 (2009)
43. Jeffrey J. Pokorak, Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors, 83 CORNELL L. REV. 1811, 1818-19 (1998)
44. Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. PERSONALITY & SOC. PSYCHOL. 597, 606-09 (2006).
45. 42 U.S.C. §2000e-2(a).
46. 29 U.S.C. §623(a) (2006).
47. 42 U.S.C. §12112(a) (2006 & Supp. II).
48. To put it another way, I assume that the influencing effect of implicit bias on action is a "datable event."
49. See Blasi, supra note 21, at 10-11
50. Wax, supra note 6, at 985-86.
51. If one likes, one might imagine that a battery of psychological tests and brain-imaging techniques could be developed for this purpose. Cf. Blasi, supra note 21, at 10 (describing studies linking perception of racial difference with certain patterns of brain activation).
52. On this assumption, unconscious bias is a discrete, detectable psychological phenomenon, as opposed to a conceptual construct that merely stands in for the inexplicability of an action under more intentional descriptions. The difference between these types of views is given some elaboration by Alasdair MacIntyre in his discussion of Freud's theory of the unconscious. See A.C. MACINTYRE, THE UNCONSCIOUS: A CONCEPTUAL ANALYSIS 50-79 (1958). As MacIntyre puts it, "Either the unconscious is an inaccessible realm of inaccessible entities existing in its own right or it is a theoretical and unobservable entity introduced to explain and relate a number of otherwise inexplicable phenomena." Id. at 71. In his discussion of MacIntyre's view of Freud, Thomas D. D'Andrea nicely summarizes the latter type of view of the unconscious in this way:
53. [T]he unconscious... represents simply an abductive inference to a better explanation of the causes of certain forms of overt human behaviour. In positing an unconscious mind (or unconscious processes at least)... Freud's inference... conforms to a standard pattern of scientific explanation: one which seeks to link observable to observable via an unobservable process.
54. THOMAS D. D'ANDREA, TRADITION, RATIONALITY, AND VIRTUE: THE THOUGHT OF ALASDAIR MACINTYRE 167 (2006). For further philosophical discussion about the possible meanings of "unconscious,"
55. see MOORE, supra note 15, at 126-42.
56. This hypothetical scenario is loosely inspired by actual research studies. See Michael I. Norton et al., Mixed Motives and Racial Bias: The Impact of Legitimate and Illegitimate Criteria on Decision Making, 12 PSYCHOL. PUB. POL'Y & L. 36, 41-42 (2006)
57. Eric Luis Uhlmann & Geoffrey L. Cohen, Constructed Criteria: Redefining Merit to Justify Discrimination, 16 PSYCHOL. Sa. 474, 475, 477-78 (2005).
58. Larry Alexander constructs a similar hypothetical case of unconscious race-based preference in the context of a broad and comprehensive discussion of the moral wrongness of discrimination generally. See Larry Alexander, What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies, 141 U. PA. L. REV. 149, 180 (1992). Alexander's imagined case involves a sports fan whose unconscious bias causes his allegiances to shift toward whichever hometown team happens to be the most predominantly white, even though he does not believe he is biased and in fact "rejects all biased judgments at the conscious level."
59. See id.
60. The basic statutory cause of action for discrimination on a theory of disparate treatment is provided in §703(a) of the Civil Rights Act of 1964,42 U.S.C. §2000e-2(a)(1) (2006).
61. The framework for analyzing the sufficiency of a plaintiffs claim under the statute is set forth in the Supreme Court's decisions in McDonnell Douglas Corp. v. Green, 411 U.S. 792,802-05 (1973). and its progeny.
62. See, e.g.. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)
63. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993);
64. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981).
65. Justice O'Connor stated this point unequivocally in Reeves, although the significance of unconscious bias was not an issue in that case: "The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." 530 U.S. at 153
66. see also Blasi, supra note 21, at 17 ("The fundamental schema of anti-discrimination laws is borrowed from the law of intentional torts: plaintiff victims of discrimination are permitted to sue defendant employers for damages if they can establish disparate treatment 'because of the employee's race, sex, or other protected category.").
67. For arguments that disparate treatment liability does not necessarily require proof of conscious discriminatory intent, see infra note 41.
68. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977) (explaining that in general, the requirement of the prima facie case merely requires plaintiff to demonstrate that the challenged employment action did not result from plaintiffs lack of qualifications or the absence of a job vacancy)
69. see also Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) (stating that the prima facie case should be understood flexibly).
70. See Reeves, 530 U.S. at 148.
71. See Hicks, 509 U.S. at 511.
72. See, e.g., Udo v. Tomes, 54 F.3d 9, 13-14 (1st Cir. 1995) (applying the McDonnell Douglas framework to reject plaintiffs claim on grounds that plaintiff failed to establish that improper motive resulted in the layoff and therefore, that plaintiffs evidence did not support an inference of discrimination)
73. see also Tristin K. Green, A Structural Approach as Antidiscrimination MandateLocating Employer Wrong, 60 VAND. L. REV. 849, 877-80 (2007)
74. Jolls & Sunstein, supra note 2, at 980.
75. See generally Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002)
76. Krieger & Fiske, supra note 9, at 1034-38 (describing and criticizing the "honest belief ' rule).
77. Nor is there any basis, on the hypothesized facts, for disparate treatment liability under a "pattern or practice" theory, under which an inference of discriminatory intent could be drawn from statistically significant racial patterns in an employer's hiring or promotion practices. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 309-12 (1977)
78. Teamsters, 431 U.S. at 339-40. It is unclear whether the imagined facts of "Work Experience" would be sufficient to make it a "mixed motives" case subject to the "motivating factor" liability standard articulated in §703(m) of Title VII of the Civil Rights Act, 42 U.S.C. §2000e-2(m) (2006). However, I would think that a court that understood the case law to require proof of conscious consideration of a protected characteristic as a basis for disparate treatment liability would probably interpret the "motivating factor" language of §703(m) to refer to conscious motives. This is simply a claim about how I would expect most courts to read the statute if the issue of unconscious discrimination were squarely presented. As I argue below in Part III.B., the literal statutory text of Title VII arguably does not require such a reading and, in fact, seems open to the possibility of liability based on unconscious bias.
79. Some commentators have argued that the cases do not clearly support the claim that disparate treatment claims depend on proof of conscious bias, animus, or consideration of a protected characteristic. In an article published in 2000, Ann McGinley proposed a reading of the case law under which unconscious bias could constitute pretext where the employer's decisionmaker is "mistaken" about the relevant facts, such as the qualifications of the affected employees or job candidates.
80. See McGinley, supra note 2, at 453-56. Katharine Bartlett has also argued that the cases do not uniformly support the claim that disparate treatment claims depend on proof of discriminatory intent in the sense of conscious bias or animus.
81. See Bartlett, supra note 1, at 1922-24.
82. There is some authority, at least in the First Circuit, that unconscious reliance on discriminatory stereotypes may be sufficient to establish the discriminatory intent required for a disparate treatment claim.
83. See Swallow v. Fetzer Vineyards, 46 F. App'x 636, 644 (1st Cir. 2002)
84. Thomas v. Eastman Kodak Co., 138 F.3d 38, 58 (1st Cir. 1999)
85. Small v. Mass. Inst. of Tech., 584 F. Supp. 2d 284, 294 (D. Mass. 2008) (stating that circumstantial evidence could be used to show pretext). It seems to me an interesting question whether the notion of an unconscious reliance on a racial stereotype is different from implicit bias generally.
86. Cf. Selmi, supra note 23, at 1241 (suggesting that not all stereotypes may influence behavior). I would note that a discriminatory stereotype is typically perceived of as an illegitimate belief about attributes of members of the stereotyped class. Thus, the concept of unconsciously acting on a stereotype may centrally involve the idea of an unconscious belief. Depending on our understanding of belief, this sort of unconscious bias seems arguably distinguishable from, or at least a special case of, unconscious bias as I have conceptualized it, namely, as a functional state or disposition, as opposed to a cognitive state with prepositional content.
87. See supra notes 15-21 and accompanying text. In any event, the unconscious stereotype cases are not particularly apposite to the present discussion, because the facts of "Work Experience" are not meant to suggest that the employer's action there is based on any reliance, unconscious or otherwise, on any stereotype as such. For further discussion of this point, see infra text accompanying notes 85-90.
88. As Justice Kennedy explained in his opinion for the Court in Ricci v. DeStefano, "Title VII prohibits both intentional discrimination (known as 'disparate treatment') as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as 'disparate impact')." 129 S. Ct. 2658, 2672 (2009)
89. see also Teamsters, 431 U.S. at 335-36 n.15 (explaining the difference between disparate treatment and disparate impact claims).
90. 42 U.S.C. §2000e-2(k)(1)(A)(1).
91. See Ricci, 129 S. Ct. at 2678 (characterizing the prima facie case of disparate impact liability to require "essentially, a threshold showing of a significant statistical disparity")
92. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988)
93. Connecticut v. Teal, 457 U.S. 440, 446 (1982).
94. The statute excuses the plaintiff from showing that a particular employment practice caused the disparate impact at issue in certain circumstances not relevant here.
95. See 42 U.S.C. §2000e-2(k)(1)(B)(1) ("[I]f the complaining party can demonstrate to the court that the elements of a respondent's decision-making process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.").
96. See Watson, 487 U.S. at 989-96
97. cf. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 309 n.44 (1978).
98. See Bartlett, supra note 1, at 1922
99. Wax, supra note 6, at 982-84
100. cf. McGinley, supra note 2, at 447
101. Wax, supra note 2, at 1146.
102. My argument shows that liability for unconscious discrimination is not precluded by the relevant statutory text. I make no claim about what Congress might have intended with regarded to unconscious discrimination.
103. 42 U.S.C. §2000e-2(a).
104. Id. The relevant language of the ADEA is similar.
105. See Age Discrimination in Employment Act, 29 U.S.C §623(a) (2006) ("It shall be unlawful for an employer... to... discriminate against any individual... because of such individual's age."). Interestingly, the Americans with Disabilities Act of 1990 originally contained the same "because of language in its general liability provision, but as part of the ADA Amendments Act of 2008, that "because of language was replaced with the phrase "on the basis of."
106. See ADA Amendments Act of 2008, Pub. L. No. 110-325, §5(a), 122 Stat. 3553 (codified as amended at 42 U.S.C. §12112 (2006 & Supp. II2008)).
107. Similarly, §703(b) of Title VII, which is sometimes understood to provide textual support for disparate impact liability, makes it unlawful for an employer "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. §2000e-2(b) (emphasis added).
108. See, e.g.. United States v. North Carolina, 914 F. Supp. 1257, 1265 (E.D.N.C. 1996) ("The concept of 'unintentional discrimination' is logically impossible.").
109. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-12 (1993).
110. Consider the sentence, "Smith flew to Florida because of y." To be sure, y might be some factor, like the warm weather, that Smith consciously considered. But it would make just as much sense for y to be something wholly outside Smith's conscious deliberation-for example, "Smith flew to Florida because he boarded the wrong plane;" or even, "Smith flew to Florida because he was under the spell of an evil demon." Furthermore, there is nothing about the "because of construction that implies that the proposition "A did x because of y" must hold true for one and only one specification of y. It might be true, for example, that Smith went to Florida because he wanted to be in warm weather, but it might at the same time be true that Smith went to Florida because it evokes pleasant memories of childhood vacations with his parents.
111. In a recent case interpreting the "because of construction as it appears in the ADEA, Justice Thomas asserted that "because of entails a but-for causal relation. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350-51 (2009). It is true that specifying a causal relation between x and y is one way of explaining x in terms of y. But as I argue below, it is not the only way.
112. 42 U.S.C. §2000e-2(a).
113. There are some reported decisions in which courts have suggested that an employer cannot be held liable for discriminating against an employee "because of a protected characteristic unless the employer was actually aware that the employee possessed that characteristic.
114. See, e.g., Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996)
115. Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 932-33 (7th Cir. 1995). The reason for rejecting liability in such cases, however, is that the employee's protected characteristic cannot possibly make a difference to an employer's decision and, therefore, cannot help explain it if that characteristic is not even known to the employer. The requirement of awareness of the protected characteristic does not speak to whether the employer must be consciously motivated by that awareness.
116. 42 U.S.C. §2000e-2(m).
117. There is presently considerable uncertainty about the circumstances in which the "motivating factor" standard of §703(m) governs the sufficiency of a Title VII plaintiffs proof of discrimination. The Supreme Court in Desert Palace, Inc. v. Costa rejected the imposition of a heightened evidentiary requirement as a precondition to the application of §703(m). 539 U.S. 90, 101-02 (2003). At the same time, the Court assumed without deciding that §703(m) is properly applied only to a certain subset of disparate treatment cases ("mixed motive" cases), while other cases would presumably be governed by the proof framework originally laid out in McDonnell Douglas.
118. See id. at 94 n.1. The Desert Palace Court declined, however, to provide positive guidance as to how the subset of cases governed by § 703(m) should be delineated. The Court's silence has given rise to a divergence of approaches among the circuit courts.
119. Compare Ginger v. District of Columbia, 527 F.3d 1340, 1345-46 (D.C. Cir. 2008) (refusing to apply §703(m) where plaintiff failed to argue a mixed motives theory of liability), with
120. Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1037-42 (9th Cir. 2005) (applying the "motivating factor" standard of §703(m) to a case in which the plaintiff had relied on McDonnell Douglas to establish her prima facie case).
121. See generally Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 U. COLO. L. REV. 1243 (2008) [hereinafter Zimmer, A Chain of Inferences] (analyzing the relationship between McDonnell Douglas and the §703(01) standard of proof)
122. Michael J. Zimmer, The New Discrimination Law: Price Waterhouse b Dead, Whither McDonnell Douglas?, 53 EMORY L.J. 1887 (2004) [hereinafter Zimmer, The New Discrimination] (discussing the logical implications of Desert Palace for structures of proof in disparate treatment litigation).
123. 42 U.S.C.§ 2000e-2(m).
124. See Faigman et al., supra note 20, at 1397 (noting Congress's silence on whether implicit bias can constitute "a motivating factor").
125. See id. at 1395-97.
126. 42 U.S.C. §2000e-2(a).
127. Id. §2000e-2(m).
128. See Selmi, supra note 23, at 1243 ("[T]here is a veritable absence of litigation over the unconscious nature of discrimination, an issue that is rarely raised in reported cases.").
129. For a concise survey of some of the reforms that have been proposed by scholars, see Bartlett, supra note 1, at 1926-30.
130. See generally Greenwald & Krieger, supra note 1; Kang & Banaji, supra note 2, at 1072 (analyzing implicit bias and its pervasiveness).
131. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973)
132. Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971).
133. See Krieger, supra note 2, at 1241
134. see also Eva Paterson et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence's Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 CONN. L. REV. 1175, 1195 (2008).
135. See Christine Jolls, Antidiscrimination Law's Effects on Implicit Bias, in 3 NYU SELECTED ESSAYS ON LABOR AND EMPLOYMENT LAW: BEHAVIORAL ANALYSES OF WORKPLACE DISCRIMINATION,
136. supra note 21, at 69, 73.
137. Cf. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988) (arguing that "subconscious stereotypes and prejudices" that infect "undisciplined" subjective decision making are a "lingering form of the problem that Title VII was enacted to combat" and should be subject to Title VII liability, insofar as such decisionmaking "has precisely the same effects as a system pervaded by impermissible intentional discrimination").
138. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (noting that a central purpose of Title VII is "making persons whole for injuries" resulting from discrimination).
139. The argument for liability need not exclude the possibility that an employer could voluntarily undertake measures to reduce the effects of bias.
140. See, e.g., Tristin K. Green & Alexandra Kalev, Discrimination- Reducing Measures at the Relational Level, 59 HASTINGS L.J. 1435, 1438-54 (2008) (discussing steps to reduce unconscious discrimination that may reduce or insulate underlying levels of implicit bias).
141. For references to some of the critical literature, see Bartlett, supra note 1, at 1896 n.4.
142. See Wax, supra note 6, at 981-86. These worries are largely mooted by my working assumption that unconscious discrimination is real.
143. See Jolls & Sunstein, supra note 2, at 986-87.
144. Cf. Christine Jolls, Commentary, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642, 686-87 (2001) (arguing that antidiscrimination laws impose greater costs to employers because they must employ certain employees against customer and coworker attitudes).
145. See Bartlett, supra note 1, at 1936-41.
146. See Krieger, supra note 2, at 1242 ("The critical inquiry would be whether the applicant or employee's group status 'made a difference' in the employer's action, not whether the decisionmaker intended that it make a difference.").
147. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-11 (1993).
148. In which case, the employer could not meet its burden of production in the standard McDonnell Douglas burden-shifting framework. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).
149. In a mixed-motives case, the plaintiff only need prove that one of the statutorily forbidden considerations was "a motivating factor" in the employer's action, and the employer can be held liable even if other considerations also motivated that action. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(m) (2006).
150. This is typically understood to require some proof that the employer took a statutorily forbidden consideration into account, even though it also relied on other factors in taking the adverse action at issue. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-99 (2003). Thus, even in a mixed-motives case, there is no actionable discrimination unless a discriminatory reason constitutes at least part of the employer's own true understanding of the basis for its action.
151. See, e.g., Burdine, 450 U.S. at 254-56.
152. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989).
153. See id. at 239.
154. See Zimmer, A Chain of Inferences, supra note 60, at 1279 ("[E]vidence of stereotypical thinking supports an ultimate inference of intent to discriminate precisely because it is an unconscious expression of bias.").
155. See Thomas v. Eastman Kodak Co., 138 F.3d 38, 58 (ist Cir. 1999).
156. See Krieger, supra note 2, at 1195 ("Stereotypes are correlational constructs.").
157. See Patrick S. Shin, Vive la Différence? A Critical Analysis of the Justification of SexDependent Workplace Restrictions on Dress and Grooming, 14 DUKE J. GENDER L. & POL'Y 491, 499-501 (2007) (discussing different types of behavior leading to stereotypes).
158. Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009).
159. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(k)(1) (A)(1) (2006).
160. See Ricci, 129 S. Ct. at 2678-81 (explaining that liability for disparate impact ultimately depends on the employer's inability to prove that its practices were justified by business necessity, or a less discriminatory alternative to those practices was available).
161. See id. at 2677-78.
162. See id. at 2678-81.
163. See id.
164. Recall that we are assuming that the employer would have reasoned to the opposite conclusion but for the rejected applicant's being black.
165. As Linda Krieger has described the argument, "the normative utility of a rule prohibiting discrimination depends entirely on decisionmaker self-awareness...Absent decisionmaker selfawareness, the nondiscrimination principle-if framed solely as a prohibitory injunction 'not to discriminate'-loses its normative mooring."
166. Krieger, supra note 2, at 1186. Professor Krieger argues, of course, that discrimination should not be defined in terms of a violation of that sort of prohibitory injunction.
167. See id. at 1239-40.
168. See Zimmer, A Chain of Inferences, supra note 60, at 1244 (discussing the requirement that the plaintiff prove a "link" between the defendant's discriminatory motive and the adverse employment action at issue).
169. For a careful and exhaustive inquiry into the concepts of causation that are implicit and explicit in doctrines of responsibility in criminal law and torts, see generally MICHAEL S. MOORE, CAUSATION AND RESPONSIBILITY: AN ESSAY IN LAW, MORALS, AND METAPHYSICS (2009).
170. Sheila Foster has made the point, albeit in the service of a much different thesis than I am propounding here, that "the causal inquiry in antidiscrimination cases [under current law] is evaluative, not explanatory." Sheila R. Foster, Causation in Antidiscrimination Law: Beyond Intent Versus Impact, 41 Hous. L. REV. 1469, 1517 (2005) (emphasis omitted) (cautioning that determinations about the causes of a decision or set of consequences may themselves be subject to the influence of implicit biases and stereotyping beliefs).
171. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
172. This general tension is one of the central themes of the philosophy of action or action theory. Seminal contemporary works that identify many of the questions that have occupied theorists in this field include G.E.M. ANSCOMBE, INTENTION (Harvard Univ. Press 2d ed. 2000), DONALD DAVIDSON, ESSAYS ON ACTIONS AND EVENTS (1980), and
173. Peter Strawson, Freedom and Resentment, in FREE WILL 59-80 (Gary Watson ed., 1982). For an accessible discussion of how some of these questions apply in the context of criminal law,
174. see R.A. DUFF, INTENTION, AGENCY & CRIMINAL LIABILITY: PHILOSOPHY OF ACTION AND THE CRIMINAL LAW (1990).
175. Note that I am making a claim about the force of deterministic causal explanations in the context of practical deliberation about whether to hold a person responsible for an act. I am not suggesting, and in fact would deny, that causal explanations in general are incompatible with attributions of responsibility. For philosophical perspectives that inform my own views on this latter question,
176. see T.M. SCANLON, WHAT WE OWE TO EACH OTHER 248-94 (1998)
177. R. JAY WALLACE, RESPONSIBILITY AND THE MORAL SENTIMENTS 51-83 (1994).
178. See generally DUFF, supra note 103, at 101-02.
179. 210 A.2d 193, 204-07 (N.J. 1965).
180. Id. at 201 (majority opinion).
181. See id. at 202.
182. The court concluded that the psychiatric testimony at issue was inadmissible on the question of guilt but admissible for purposes of determining punishment.
183. See id. at 204.
184. Id. at 205 (Weintraub, C.J., concurring).
185. Id. at 206.
186. Id. at 207.
187. I am making a claim here about precepts of choice and responsibility that inform our actual practices of holding persons responsible. Cf. SCANLON, supra note 104, at 277-80.
188. See id. Again, to be clear, I deny (for reasons elaborated by Scanlon) that responsibility presupposes control over the causes of our actions in any sense that would be incompatible with philosophical determinism. See id. For another concise argument that there is no relevant sense of "control" that governs attributions of responsibility,
189. see MOORE, supra note 100, at 24-26.
190. For an example of this view based on psychological science, see DANIEL M. WEGNER, THE ILLUSION OF CONSCIOUS WILL (2002)
191. cf. Deborah W. Denno, Criminal Law in a Post-Freudian World, 2005 U. III. L. REV. 601, 672-673.
192. See supra text accompanying notes 48-65.
193. My claim is about what the statutory text seems to permit, not about how courts have actually understood it.
194. This concern is perhaps what underlies the argument advanced by certain critics that some constructions of implicit bias are too overinclusive to have real legal or political significance. See Arkes & Tetlock, supra note 8, at 264, 275. In the title of their critical article, Arkes and Tetlock ask the question, "Would Jesse Jackson 'Fail' the Implicit Association Test?"
195. See id. at 257. The authors suggest that the answer is yes, which they take as a reason to be skeptical about the concept of implicit bias.
196. See id. at 264, 270. Put more generally, the argument is that any test of discriminatory bias that could not be "passed" by someone like Jesse Jackson, an outspoken advocate for antidiscrimination and equality, could not be capturing any worthwhile conception of discrimination. For a response to this sort of argument,
197. see Bagenstos, supra note 4, at 488-90.
198. See Denno, supra note 115, at 672-73.
199. For philosophical elaborations on this sort of view of the conditions under which it is appropriate to blame an agent for wrongdoing,
200. see Pamela Hieronymi, The Force and Fairness of Blame, 18 PHIL. PERSP. 115 (2004)
201. see also T.M. SCANLON, MORAL DIMENSIONS: PERMISSIBILITY, MEANING, BLAME 197-98 (2008)
202. SCANLON, supra note 104, at 277-80
203. Angela M. Smith, Control, Responsibility, and Moral Assessment, 138 PHIL. STUD. 367 (2008).
204. Cf. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 321 (1987) (analogizing racism to a "disease" or "illness... that infects almost everyone").
205. This would be analogous to the unconsciously biased actor having reason to take precautions against the influence of her unknown biases.
206. For a rather different philosophical perspective, see GEORGE SHER, WHO KNEW?: RESPONSIBILITY WITHOUT AWARENESS (2009). On Sher's account, an agent can be morally responsible for an attitude that is causally connected to the agent's "constitutive features,"
207. see id. at 121-22, which need not be aspects of the agent with which he would necessarily identify.
208. See id. at 122 (suggesting that even "neurophysiological mechanisms" might count as constitutive). Sher does not discuss the problem of unconscious bias in detail, however, and it is not clear to me whether his view implies that an agent will usually be morally responsible for her unconscious biases. The answer would depend, I suppose, on which aspects of the agent's psychology could be regarded as constitutive.
209. This worry about the causal conception of discrimination is not necessarily an argument against negligence-based or strict liability, either in the context of employment discrimination or elsewhere. Holding a person liable without requiring proof of intent is not the same thing as holding a person liable for an action by virtue of the action's being influenced by a causal factor outside the scope of the actor's agency. It is the latter sort of liability that is central to the causal conception.
210. SCANLON, supra note 104, at 20-24 (coining and explaining the term).
211. See Lawrence, supra note 121, at 322-23. For a similar argument, see Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L.J. 345, 417-20 (2007).
212. 127- See Levinson, supra note 126, at 417-20.
213. Id. at 420.
214. Cf. Lawrence, supra note 121, at 322-23 (arguing that an individual's racism is intertwined with society's belief system).
215. Larry Alexander makes a similar observation in discussing the difficulties of drawing a meaningful moral distinction between actions based on conscious bias, actions based on unconscious bias, and actions based on preferences that are facially neutral but are in fact "tainted" by a causal connection to historically discriminatory social structures.
216. See Alexander, supra note 33, at 177-81.
217. See, e.g., Blasi, supra note 21, at 3-16
218. Jolls, supra note 71, at 72-73
219. Krieger, supra note 2, at 1164.
220. See Lawrence, supra note 121, at 329.