Intent and Liability in Employment Discrimination

• Date: 01 December 2016
• Author: Jeffrey R. Boles,Leora F. Eisenstadt
• Published date: 01 December 2016
• DOI: http://doi.org/10.1111/ablj.12086

Intent and Liability in Employment

Discrimination

Leora F. Eisenstadt* and Jeffrey R. Boles**

INTRODUCTION

In March 2015, The New Yorker brought a question typically debated by

legal scholars firmly into the public consciousness when it published the

article, “The Ellen Pao Trial: What Do We Mean by ‘Discrimination’?”

1

The article was prompted by an employment discrimination case brought

by Ellen Pao, a former junior partner at the Silicon Valley–based venture

capital firm Kleiner Perkins Caufield & Byers. Pao claimed that she was

the victim of sex discrimination in violation of California law and alleged

that she was retaliated against for complaining about sexual harassment,

that her performance reviews unfairly focused on interpersonal skills and

clashes with her peers and other partners, that she and other women

were “constantly being interrupted and ignored during meetings,” that

women were excluded from firm-related social events, and that women

partners were excluded from several partner dinners because they would

*Assistant Professor, Department of Legal Studies, Fox School of Business, Temple University.

B.A., Yale University; J.D., New York University School of Law; L.L.M, Temple University

Beasley School of Law.

**Assistant Professor, Department of Legal Studies, Fox School of Business, Temple

University. Ph.D., University of California, Berkeley; J.D., University of California, Berkeley

School of Law.

This article greatly benefited from discussions at the 2015 Annual Academy of Legal Stud-

ies in Business Conference and the 2015 Colloquium on Scholarship in Employment and

Labor Law cosponsored by the Maurer School of Law and the Kelley School of Business

at Indiana University.

1

Vauhini Vara, The Ellen Pao Trial: What Do We Mean by “Discrimination”?,NEW YORKER

(Mar. 14, 2015), http://www.newyorker.com/business/currency/the-ellen-pao-trial-what-do-

we-mean-by-discrimination.

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American Business Law Journal V

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“kill the buzz,” among other claims.

2

While many of Pao’s allegations con-

stitute traditional sex discrimination and retaliation claims, the media

attention largely focused on those claims that alleged a culture of bias

and stereotypes in which women’s opinions were regularly ignored or

maligned and high-achieving women were excluded from important

social events and committees, severely limiting their professional success.

3

These claims emerge from a conception of discrimination that incorpo-

rates more than overt, conscious, or purposeful bias and includes actions

that are born out of stereotypes (conscious or subconscious), implicit bias,

and structural obstacles to equality, and that led The New Yorker to inquire

about the changing nature of discrimination.

Scholars have considered for several decades the questions of what

discrimination means, how this term should change over time, and what

type of motive or intent makes an employer liable under the law.

4

There is an emerging consensus (with some notable dissenters) that the

concept of “intent” in disparate treatment employment discrimination

5

should be broadened to encapsulate more flexible notions, including

2

Complaint at 8, 10, Pao v. Kleiner Perkins Caufield & Byers LLC, No. CGC-12-520719

(Cal. Super. Ct. May 10, 2012). Pao lost at trial and, in September 2015, announced that

she was dropping her appeal because she could not afford further costs. See Jeff Elder,

Ellen Pao Won’t Appeal Trial Loss in Case Against Kleiner Perkins Caufield & Byers,W

ALL ST.J.

(Sept. 10, 2015, 1:45 PM), http://www.wsj.com/articles/ellen-pao-wont-appeal-trial-loss-in-

case-against-kleiner-perkins-caufield-byers-1441906196.

3

See,e.g., Ellen O. Tauscher, Ellen Pao Trial Shows Ending Workplace Bias Has Long Way to

Go, S.F. CHRON. (Mar. 25, 2015, 9:27 PM), http://www.sfchronicle.com/opinion/openforum/

article/Ellen-Pao-trial-shows-ending-workplace-bias-has-6159223.php.

4

See generally Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with

Unconscious Racism,39S

TAN.L.REV. 317 (1987) (providing an early example of consider-

ation of implicit bias); D. Don Welch, Removing Discriminatory Barriers: Basing Disparate Treat-

ment Analysis on Motive Rather than Intent,60S.C

AL.L.REV. 734 (1987) (considering same);

Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law,66S

TAN.

L. REV. 1381 (2014) (providing a recent example considering the concept of implicit bias).

5

See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (“‘Disparate

treatment’ ... is the most easily understood type of discrimination. The employer simply

treats some people less favorably than others because of their race, color, religion, sex, or

national origin. Proof of discriminatory motive is critical, although it can in some situations

be inferred from the mere fact of differences in treatment.”).

608 Vol. 53 / American Business Law Journal

implicit bias, negligent discrimination, and structural discrimination.

6

In

support of their arguments, scholars point to psychological research

demonstrating that implicit bias and reliance on ingrained stereotypes

is, to some extent, natural to human decision-making processes.

7

As a

result, bias in the workplace operates at both an overt, knowing level

but also beneath the surface and, at times, without the conscious knowl-

edge of the decision makers themselves.

Nonetheless, despite more than two decades of legal scholarship on

this issue, there has been relatively little change in statutory protec-

tions or judicial interpretations of discrimination regarding the spec-

trum of motivational conduct that constitutes disparate treatment.

8

The resistance to such change may be attributable to several factors,

6

See Leora F. Eisenstadt, Causation in Context,36BERKELEY J. EMP.&LAB. L. 1, 35 n.194

(2015) (citing Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias

Approach to Discrimination and Equal Employment Opportunity,47S

TAN.L. REV. 1161 (1995)

(arguing that Title VII jurisprudence must evolve to include implicit cognitive bias)); Tris-

tin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate

Treatment Theory,38H

ARV. C.R.-C.L. L. REV. 91, 93 (2003) (proposing a structural account

of disparate treatment theory that considers workplace dynamics); Lawrence, supra note 4,

at 355–56 (proposing a test to identify and address implicit motivations in discrimination

cases); David Benjamin Oppenheimer, Negligent Discrimination, 141 U. PA.L.REV. 899, 969

(1993) (advancing a theory of negligent discrimination); Susan Sturm, Second Generation

Employment Discrimination: A Structural Approach, 101 COLUM.L.REV. 458, 460 (2001) (exam-

ining “second generation” forms of workplace bias that involve “patterns of interaction,”

which exclude nondominant groups over time, and advancing a structural regulatory solu-

tion to address this form of discrimination); see also Natalie Bucciarelli Pedersen, A Legal

Framework for Uncovering Implicit Bias,79U.C

IN.L.REV. 97, 98 (2010) (suggesting a frame-

work for evaluating implicit bias claims that forces employers to reflect upon their motives

for a particular decision). But see Gregory Mitchell & Philip E. Tetlock, Antidiscrimination

Law and the Perils of Mindreading,67O

HIO ST. L.J. 1023, 1025–26 (2006) (critiquing the

Implicit Association Test and arguing that “unconscious processes” should not be relied

upon as either legislative authority or litigation evidence in antidiscrimination cases until

more valid research is done); Amy L. Wax, Discrimination as Accident,74I

ND. L.J. 1129,

1170 (1999) (“The absence of adequate, non-subjective methods for assessing workplace

performance makes it almost impossible to assess the claims that subjective evaluations are

biased.”).

7

See Krieger, supra note 6, at 1187; Ann C. McGinley, ¡Viva La Evoluci

on!: Recognizing

Unconscious Motive in Title VII,9C

ORNELL J. L. & PUB.POL’Y415, 423–24 (2000).

8

See, e.g., Karlo v. Pittsburgh Glass Works, LLC, No. 2:10-cv-1283, 2015 U.S. Dist. LEXIS

90429, at *29–30 (W.D. Pa. July 13, 2015) (reviewing cases that reject evidence of implicit

bias and rejecting implicit bias expert evidence as unreliable and irrelevant to a disparate

treatment analysis that “require[s] proof of a discriminatory motive, which seems incom-

patible with a theory in which bias may play an unconscious role in decision making”).

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