Fashioning a Title VII remedy for transparently white subjective decisionmaking.

• Author: Flagg, Barbara J.
• Position: Employment discrimination

sider themselves fortunate to be associated with Goodson at all. Like other young accountants, Yvonne at first attempted to keep meticulous records, but she soon realized that others were surpassing her in billable hours without spending more time actually at work. Consequently, and consistent with her general pattern of conforming to prevailing norms, she gradually adopted the less precise method.

Under Goodson's promotion procedure, the decision whether to promote an accountant to regional supervisor rests on senior partners' evaluations of the candidate's accounting knowledge and skills and, to a lesser extent, on assessments of her interpersonal skills solicited from clients and from peers in the office in which she works. The reports on Yvonne's accounting skills were uniformly excellent. Comments from some peers had overtones of distance and mild distrust suggesting that they were somewhat uncomfortable with Yvonne as a black woman, but these comments fell far below the level necessary to raise serious doubts about her interpersonal skills. However, several of Yvonne's clients took the occasion to register complaints about possible overbilling. The firm launched an extensive investigation and eventually reached the conclusion that Yvonne had been careless in her recordkeeping and that therefore she should not be promoted at that time.(2) As a practical matter, this episode ended Yvonne's prospects for advancement at Goodson; the firm has an informal policy of not reconsidering an individual once she has been passed over for promotion.

Yvonne has a younger sister who, sometime during college, legally changed her name from Deborah Taylor to Keisha Akbar. As her decision to change her name suggests, Keisha places an emphasis on her African heritage that Yvonne does not,(3) and she has adopted speech and grooming patterns consistent with that cultural perspective.(4) Keisha majored in biology at Howard University, and after graduation went to work as the only black scientist at a small research firm dedicated to identifying and developing environmentally safe agricultural products for commercial uses. Like Yvonne, Keisha excelled at the technical aspects of her work, but she brought to it a much less assimilationist personal style. At first, her cultural differences had no particular impact on her job performance. This changed, however, when the once-small firm began to grow rapidly and reorganization into research divisions became necessary. For the most part, the firm planned to elevate each of the original members of the research team to positions as department heads, but Keisha was not asked to head a department because the individuals responsible for making that decision felt that she lacked the personal qualities that a successful manager needs. They saw Keisha as just too different from the researchers she would supervise to be able to communicate effectively with them. The firm articulated this reasoning by asserting a need for a department head who shared the perspectives and values of the employees under her direction.(5) When Keisha raised the possibility that her perceived differences might be race-dependent, the decisionmakers replied that they would apply the same conformity-related criteria to white candidates for the position of department head.(6)

Thus, in spite of the diametrically different cultural styles adopted by Yvonne and Keisha,(7) their stories have the same ending: Each encountered the glass ceiling at a relatively early stage of what should have been a very successful career.(8) A case can be made that both were disadvantaged because of race.(9) Yvonne would argue that there is no nonracial element of her performance or her personal characteristics that could account for the way her recordkeeping practices were singled out for special scrutiny, and therefore that race is left as the most plausible explanation of the different treatment she received. Even if the basis for the special treatment was unconscious, this is a relatively easily understood form of discrimination: Yvonne's contention would be that she was treated differently from similarly situated others because of her race.

Keisha, on the other hand, arguably was given the same treatment that would have been afforded anyone who was perceived as unable or unwilling to fit smoothly into the corporate culture. Nevertheless, it can be argued that she too was disadvantaged because of her race, in that the personal characteristics that disqualified her from a management position intersect seamlessly with her self-definition as a black woman. I previously have characterized this form of discrimination as an outgrowth of the transparency phenomenon:

White people externalize race. For most whites, most of the time, to think or speak about race is to think or speak about people of color, or perhaps, at times, to reflect on oneself (or other whites) in relation to people of color. But we tend not to think of ourselves or our racial cohort as racially distinctive. Whites' "consciousness" of whiteness is predominantly unconsciousness of whiteness. We perceive and interact with other whites as individuals who have no significant racial characteristics. In the same vein, the white person is unlikely to see or describe himself in racial terms, perhaps in part because his white peers do not regard him as racially distinctive. Whiteness is a transparent quality when whites interact with whites in the absence of people of color. Whiteness attains opacity, becomes apparent to the white mind, only in relation to, and contrast with, the "color" of nonwhites.(10)

Just as whites tend to regard whiteness as racelessness, the transparency phenomenon also affects whites' decisionmaking; behaviors and characteristics associated with whites take on the same aura of race neutrality. Thus, white people frequently interpret norms adopted by a dominantly white culture as racially neutral, and so fail to recognize the ways in which those norms may be in fact covertly race-specific.(11) Keisha would argue that she was not promoted because her personal style was found wanting when measured against a norm that was in fact transparently "white."(12)

The manner in which both Yvonne and Keisha were treated violates the norm of colorblindness - the principle that race should not be taken into account in assessing the individual. In Yvonne's case, the claimed violation should be obvious; arguably she was treated differently from others solely because she is black. With regard to Keisha, the violation of the colorblindness norm takes the form of applying unconsciously white, and in that sense race-specific, criteria of decision. Thus, laws and policies designed to implement the colorblindness principle ought equally to disapprove the outcomes in both sisters' cases.

Because these race-specific acts occurred in employment contexts, both Yvonne and Keisha would turn to Title VII for legal relief.(13) However, even though Title VII provides a cause of action for adverse employment decisions taken "because of" race,(14) Keisha and Yvonne would find themselves in quite different positions under existing judicial interpretations of that statute. Yvonne would have a relatively easy time framing a disparate treatment claim (though that is not to say that she necessarily would prevail), but as a practical matter Keisha would have difficulty getting beyond the initial pleading stage because the form of discrimination she encountered cannot easily be addressed under either the disparate treatment or the current disparate impact model.(15) This Article attempts to fill that gap by formulating alternative models for Title VII litigation that would give Keisha at least the same opportunity to advance an employment discrimination claim that Yvonne currently enjoys.(16)

From a more theoretical vantage point, Keisha's case raises the question whether transparently white decisionmaking falls within the category of race-specific employment practices proscribed by Title VII. While Title VII now applies to both public and private employers,(17) the focus of this Article is on the private sector. I have argued elsewhere that government has a special obligation not to participate in the maintenance of white supremacy.(18) However, the question whether private employers have a similar obligation raises a different constellation of issues concerning role and responsibility. Thus, an examination of the fundamental policy regarding race discrimination embodied in Title VII is a necessary prerequisite to any proposal that would require judicial recognition of a new or amended approach to Title VII liability. I contend that judicial acceptance of a revised model of liability would be wholly consistent with current congressional policy regarding Title VII, as evidenced in the amendments to the statute adopted in the Civil Rights Act of 1991.(19)

I undertake this project of doctrinal construction with two objectives in view. First, I hope to make the case that in Title VII and its 1991 amendments there are conceptual strands that can be woven together to form a coherent theory of liability for transparently white subjective decisionmaking. In addition, I offer this analysis as an exercise in reflection - on the nature of the transparency phenomenon and the nature of doctrinal formation, reciprocally. Exploring transparency may tell us something about what race discrimination doctrine might become, and examining doctrinal possibilities may tell us something about who we want and choose to be.(20)

Part II explains in greater detail the existing disparate impact and disparate treatment theories of liability, and applies them to Yvonne's and Keisha's situations. I conclude that Keisha cannot, as a practical matter, succeed in a claim under existing judicial interpretations of the statute, and that the reasons this is so are linked to the nature of the transparency phenomenon. Part...