The Bias Presumption

• Pages: 749-785
• Date: 01 April 2024
• Published date: 01 April 2024
• Author: Dave Hall,Brad Areheart

The Bias Presumption

DAVE HALL* & BRAD AREHEART**

The American workplace is a fractured sphere of public life, in which

white men often wield power at the expense of women and people of

color. However, that power imbalance is no longer fully imbued with the

active animus that characterized the f‌irst few centuries of American life;

now, much of the damage done by discrimination is done structurally

and implicitly. Consequently, the operation of bias and disadvantage is

often invisible to employers and employees alike. The problem of dis-

crimination in American life is thus larger and deeper than a few bad

actors, and it will be impossible to solve without buy-in from the institu-

tions that perpetuate it. This Article argues that the workplace is one

such institution, that it can be a positive agent of change, and that the

law is an appropriate venue for creating that change.

Antiracist interventions are predicated on, f‌irst, recognizing structural

impediments to racial equality and, second, taking deliberately pointed

action. One of the law’s primary levers in the pursuit of racial equality is

Title VII of the Civil Rights Act of 1964, which seeks to address work-

place discrimination. In practice, however, Title VII has been largely

unsuccessful in securing equality within the workplace. There are two

signif‌icant problems. The f‌irst is the current burden of proof framework,

which in practice requires employees to scrape together the kind of

“smoking gun” proof that is often diff‌icult (and sometimes impossible) to

f‌ind. The second is a host of psychological and social factors that enable

discriminatory practices while at the same time making it diff‌icult for

courts to recognize discrimination.

This Article argues that Title VII’s failures are in part a problem of

scope. Specif‌ically, the law is centered on individuals and discrete

moments in time and operates from a presumption of nondiscrimination.

Further, employment discrimination cases are inherently hard to prove

because they reach back in time and seek to dissect nonphysical and non-

concrete states of mind. Yet there is a vast body of literature that shows

most people have discriminatory tendencies that run afoul of the law. We

argue that Congress should amend Title VII to shift all burdens of proof

and persuasion away from employees in suspect classes who have

* Adjunct Professor of Law, University of Tennessee College of Law. © 2024, Dave Hall & Brad

Areheart.

** Professor of Law, University of Tennessee College of Law. For helpful conversations and astute

insights regarding various iterations of this Article, we would like to thank Mark Brodin, Katie Eyer,

Sandra Sperino, and Val Vojdik. We are also grateful for help from our talented research assistants,

Bethany Wilson and Billy Quinlan. Finally, we thank the Editors at The Georgetown Law Journal, who

have been conscientiously detailed and yet also a pleasure to work with.

749

experienced adverse outcomes and onto employers. This change would

ensure that a plaintiff’s prima facie claim of discrimination automatically

creates a rebuttable presumption of discrimination, which the employer

then has the burden of demonstrating did not occur. By turning the typi-

cal analysis of employment discrimination on its head, Congress would

be recognizing that discrimination is often structural and implicit, allow-

ing us to achieve a greater recognition of systemic bias. Just as impor-

tantly, such a change would signal an acknowledgment to the public, and

to employers in particular, that discrimination is far more common than

the operation of the law might suggest. It would express a presumption of

bias, which would incentivize employers to be more proactive about com-

bating discrimination—even when it comes disguised as social slights,

indignities, or apathy.

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751

I. DISCRIMINATION IN THE WORKPLACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755

A. ANIMUS ................................................ 756

B. APATHY................................................ 757

C. IMPLICIT BIAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758

D. STRUCTURAL BIAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760

II. CONTEMPORARY TITLE VII JURISPRUDENCE . . . . . . . . . . . . . . . . . . . . . . . . 763

A. DISPARATE TREATMENT CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764

1. Why Direct Evidence Doesn’t Work .................. 765

2. The McDonnell Douglas Seesaw...................... 766

B. DISPARATE IMPACT CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 768

C. WHY COURTS DON’T SEE DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . 770

III. PREVIOUSLY SUGGESTED REVISIONS TO TITLE VII . . . . . . . . . . . . . . . . 773

A. A BROAD REFORM THAT ISN’T BROAD ENOUGH . . . . . . . . . . . . . . . . . 773

B. A NARROW REFORM THAT IS TOO NARROW . . . . . . . . . . . . . . . . . . . . 775

IV. PRIOR INNOVATIONS IN THE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776

V. THE BIAS PRESUMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777

750 THE GEORGETOWN LAW JOURNAL [Vol. 112:749

A. THE PROPOSED STATUTORY LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . 778

B. THE PRACTICAL EFFECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779

C. SOME LIKELY OBJECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 780

1. A Flood at the Courthouse? .......................... 780

2. A Mere Proposal for Just Cause?...................... 781

3. The End of At-Will Employment? .................... 784

4. A De Facto Quota System?........................... 784

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 785

INTRODUCTION

Franklin Thomas was drawn with a noose around his neck.

1

That particular

graff‌iti was not the only indication that Black people were not welcome in the

shipbuilding company.

2

White coworkers displayed Confederate f‌lags on their

clothes, on protective work gear, on their cars.

3

The men’s room was f‌illed with

hateful drawings and racist phrases such as “all blacks need to go back to their

motherland in Africa” and “[Blacks] are hired from the neck down not to think.”

4

The f‌irst time that Black plaintiff Thomas reported the graff‌iti to his white super-

visor, it was painted over.

5

When the graff‌iti reappeared and Thomas raised it a

second time, the supervisor told him that “there was nothing he could do to stop

it.”

6

After he reported it to a second white supervisor, he was told again that “there

was nothing they could do about it.”

7

After reading those claims, the United States District Court for the Southern

District of Alabama granted summary judgment against Thomas, holding that no

reasonable jury could have found the described conduct suff‌iciently frequent and

severe to constitute unlawful discriminatory harassment.

8

That is, despite the

court’s having found that it was “not unreasonable to infer from Thomas’ allega-

tions that the conduct was racially demeaning, humiliating and degrading,”

9

the

conduct was still not severe enough for current law to prohibit. The facts Thomas

alleged present a particularly egregious case that involves malice and racist

intent, yet the district court’s interpretation of Title VII

10

did not adequately cap-

ture such treatment in its narrow conception of discriminatory harassment. One

1. Thomas v. Austal, U.S.A., L.L.C., No. 08-00155, 2011 WL 2078525, at *5 (S.D. Ala. May 26, 2011).

2. Id. at *1, *4–6.

3. Id. at *5.

4. Id.

5. Id.

6. Id.

7. Id.

8. Id. at *6.

9. Id. at *7.

10. 42 U.S.C. § 2000e-2.

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