“In Part II, I argue that the either-or framework applied by most courts to individual claims of discrimination is by no means required–and in fact is unwarranted–under Title VII. A close reading of the statute and the caselaw reveals that the either-or framework is more a judicial invention than a mandatory aspect of Title VII. Even if there would have been merit to the either-or approach under the original statute, such a reading is no longer permissible in light of the Civil Rights Act of 1991 and the Supreme Court’s 2003 decision in Desert Palace v. Costa. The 1991 amendments to Title VII made clear that a plaintiff could prove a violation of the law when more than one factor motivated the decision; in other words, a defendant can have both legitimate and illegitimate reasons for taking a particular action. Thus, honesty about the nondiscriminatory reason for a defendant’s actions cannot alone preclude the existence of a discriminatory motivation. In Desert Palace, the Supreme Court corrected the mistaken assumption of many lower courts that this mixed motive approach was available only when plaintiffs could provide direct evidence of a discriminatory motive. I argue that the Desert Palace decision allows plaintiffs to challenge decisions where there is evidence to suggest that the employer honestly believed it was relying on nondiscriminatory reasons, but other evidence points to racial or gender bias in the process.”
I conclude that the existing Title VII framework provides significant potential for challenging unconscious discrimination. In both individual cases and class litigation, plaintiffs have successfully challenged the use of the unfettered discretion that most commonly permits cognitive biases to infect decisionmaking. The very nature of these claims, however, often makes them the “hard cases.” This difficulty is compounded by the fact that, like employers, judges are subject to cognitive biases and may be unable to see beyond their own assumptions in evaluating the merits of a case.
I’m definitely looking forward to reading this article!
Source: Melissa Hart, Subjective Decisionmaking and Unconscious Racism, 56 Ala. L. Rev. 741, 743-745. 2005.
Me Against Iniquity: Understanding the Complexities of Global White Supremacy (Racism) Through The Eyes of an Unapologetically BLACK Intellectual 