Bias in the air: rethinking employment discrimination law.

• Author: Ford, Richard Thompson
• Position: The Civil Rights Act at Fifty

INTRODUCTION: WHAT IS DISCRIMINATION? I. THE CONCEPT OF DISCRIMINATION A. In Search of Discrimination 1. Race- and sex-dependent decisions 2. Functional equivalence: classification = intent = impact B. Inference 1. Inference: "discrimination" = lack of good cause 2. A limited duty of care to make good-cause employment decisions accomplishes the goals of Title VII II. "CAUSATION" DEFINES THE SCOPE OF A DUTY OF CARE CONCLUSION INTRODUCTION: WHAT IS DISCRIMINATION?

American antidiscrimination law was developed in reaction to unambiguously racist policies: the policies typical of the Jim Crow system in the Southern states. Jim Crow policies had several characteristic features. They made explicit reference to race: blacks or "coloreds" were excluded from certain institutions, jobs, and public places; they were herded into segregated (and almost always objectively less desirable) areas. They were unambiguously designed to fulfill and to perpetuate an ideology of racial hierarchy, the rationale for the policies being that blacks were naturally inferior, were unfit for the social status whites enjoyed, and deserved an economic and social status that mirrored the natural status the ideology assigned them. Jim Crow policies were purposely stigmatizing, and they were universally experienced as stigmatizing--both by whites who enjoyed the relative psychological and social privilege the policies created and by blacks who suffered the corresponding psychological and social injuries.

It has long been well understood that antidiscrimination law needs a way of confronting subtler versions of the older Jim Crow policies. The easiest case involves a simple shift from a formal policy of exclusion to an informal one. The business that once announced "blacks need not apply" now accepts the applications but refuses to seriously consider them. The policy and its effects are identical; only the form has changed. Now, suppose the business considers some black applicants, but only for the least desirable positions. Or it considers only the very best black applicants, requiring much stronger credentials than it does for white applicants for the same jobs. Or suppose it considers only timid and subservient blacks, rejecting as "uppity" any black person who holds her head high and expects to be treated as an equal. It's easy to see that these practices are only slightly less noxious versions of the paradigmatic Jim Crow discrimination.

Jim Crow-style policies combined a number of evils: they were blatantly discriminatory, stigmatizing, and motivated by bigotry, and they had the effect of keeping blacks socially, politically, and economically subordinate to whites. But many of today's subtler controversies exhibit only some of these evils and, even then, exhibit them ambiguously. This makes it harder to be sure precisely what antidiscrimination law should prohibit. Is the defining evil of Jim Crow its social consequences or the motivations and ideology of those who imposed it? If the evil is its consequences, is the central wrong the cumulative effects of exclusion and segregation on a racial group, or is it each individual injury? Is Jim Crow's singular crime against humanity the creation of a social hierarchy, or is it guilty of innumerable individual offenses? Is the central harm symbolic and stigmatic, or is it objective and materially unequal? If the evil is motivations, what is the precise nature of the wrongful motive? What is the content of the ideology? Is the evil here an irrational hatred, a specious belief in a natural hierarchy and proper place, a mistaken belief in differential capacities, a phobia of miscegenation? All of these come together in the figure of Jim Crow, but today the bird has been dismembered: a wing here, a leg there, a scattering of feathers.

Consequently we don't have a good definition of what makes a decision or action discriminatory. Instead we have a conception or impression of discrimination--inspired by the paradigmatic Jim Crow-style policies--that potentially includes a number of factors, such as motivation, cumulative effect, stigma, and lack of objective rationality.

Formally, current doctrine holds that individuals have an entitlement not to be treated unfairly because of race, sex, religion, etc. But this goal is both too ambitious and too poorly defined to guide the application of the law or the direction of public policy. We lack good and agreed-upon definitions of the relevant prohibited bases of discrimination. (For instance, does race denote only inherited characteristics such as skin color and other physical features, or does it extend to traits such as culture?) Even when such questions are settled, we lack a sound basis for determining whether the prohibited motivation was present and, if it was, whether it caused the challenged decision or was merely incidental to it. Finally, the commitment to individual entitlement is radically at odds with much of the way the doctrine is applied, most notably in the continued (and in my view appropriate) solicitude for the claims of members of vulnerable groups as opposed to members of powerful groups.

The law misrepresents this conceptual and definitional ambiguity as a problem of evidence. Antidiscrimination doctrine proceeds as if the definition of discrimination is pellucid and the only problems lie in determining whether discrimination in fact took place. So the question is whether we can infer discriminatory motivation from lack of good cause for an adverse employment decision or presume that prejudiced attitudes prevalent in the workplace caused an adverse decision. But these evidentiary disputes are unlike typical questions of evidence in an important sense: the actions and conditions that are offered as evidence of the underlying legal transgression are also objectionable in their own right. For instance, employment decisions made without justification or workplaces in which bigoted attitudes are prevalent are objectionable whether or not they are accompanied by race- or sex-dependent decisions. Hence, it is plausible that we are willing to punish employers that allow unjustified decisions or who preside over workplaces saturated with bias because we object to these conditions in and of themselves.

Since antidiscrimination laws effectively discourage the practices and actions that typically serve as evidence of discrimination--because those practices and actions are intrinsically objectionable and because "discrimination" itself is ambiguously defined--it is a small step to say that antidiscrimination law in effect prohibits not discrimination but rather the things that count as evidence of discrimination. In this Essay, I take that small step as well as the somewhat larger one of defending this idea of antidiscrimination law as superior to one that tries to better define and identify the ever-elusive "discrimination."

Accordingly the law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy. (1) Of course, the things that unnecessarily perpetuate social hierarchy are precisely the things that now count as evidence of discrimination: unjustified adverse decisions, unexplained segregation of the workforce, and workplaces saturated with hostility or stereotyping. Meeting the duty of care should be an affirmative defense to any claim of discrimination, and failure to meet the duty should create a strong presumption that the challenged decision was discriminatory.

To the individual victim of discrimination, this may seem unfair or even perverse, but in fact it is no more problematic from the perspective of individual justice than the current approach. The central problem in employment discrimination is distinguishing the victim of discrimination from the person who simply suffered an adverse employment action. Under a default regime of employment at will, an adverse employment action--even an unjustified one--is not, in and of itself, a legally cognizable injury. In a large number of cases, it's hard to tell whether the challenged employment action was justified, unjustified for nondiscriminatory reasons (e.g., the product of a personal grudge, a lapse in judgment, caprice, or a mistake), or discriminatory. As I will argue, much of the ideological dispute in employment discrimination centers on whether we should presume that the defendant discriminated in cases in which the plaintiff can prove only that the challenged decision was objectively unjustified. Both liberals and conservatives alike are willing to tolerate a lot of error in this respect: liberals are willing to allow people who suffer unjustified adverse decisions to recover, knowing that some are victims not of actionable discrimination but instead of some garden-variety type of unfairness; and conservatives are willing to let many victims of discrimination go uncompensated in order to protect employers' prerogatives to make decisions without having to justify them to lawyers and judges.

Whenever the employment contract is at will, many people will suffer unjustified employment actions and have no legal remedy. On the individual level, unjustified decisions based on race or sex are no different than unjustified decisions based on any other irrelevant factor beyond the control of the individual. The objective and immediate injury is identical: some employee doesn't get the job, promotion, or raise that he wanted and merited. What makes the prohibited forms of discrimination worse than the myriad types of discrimination that the law allows is that the prohibited types are pervasive; the victims of sex discrimination will encounter it in workplace after workplace, whereas the victim of discrimination based on red hair or freckles can rest assured that the next...