The implications of psychological research related to unconscious discrimination and implicit bias in proving intentional discrimination.

• Author: Bodensteiner, Ivan E.

1. INTRODUCTION

   In most cases alleging discrimination in violation of a federal statute or the U.S. Constitution, the plaintiff must prove disparate treatment, i.e., intentional discrimination. These cases arise under several federal statutes that prohibit race discrimination, (1) including (a) Title VII of the Civil Rights Act of 1964 (Title VII), (2) which prohibits employment discrimination based on race, sex, national origin, color and religion; (b) the Civil Rights Act of 1866, as amended in 1870 ([section] 1981), (3) which prohibits race discrimination in contracting, including employment; (c) Title VI of the Civil Rights Act of 1964 (Title VI), (4) which prohibits race discrimination in programs receiving federal financial assistance, but addresses employment discrimination only where the federal funds are intended for employment; (d) the Fair Housing Act (FHA), (5) which prohibits discrimination in housing based on race, color, religion, sex, national origin, familial status and disability; (e) the Civil Rights Act of 1866, as amended in 1870 ([section] 1982), (6) which prohibits race discrimination in property transactions, including housing; and (f) the Civil Rights Act of 1871 ([section] 1983), (7) which provides a cause of action against state and local government for individuals claiming discrimination in violation of the U.S. Constitution. (8) While some of the statutes reach actions or practices that have a disproportionate impact on a protected class or group, (9) most plaintiffs filing a discrimination case allege disparate treatment.

   The Supreme Court requires plaintiffs asserting Equal Protection claims, as well as statutory disparate treatment claims, to prove intentional discrimination. This means that showing only a disproportionate impact is not sufficient to establish a violation of the Equal Protection Clause. (10) Rather, there must be proof "that the decisionmakers ... acted with discriminatory purpose," (11) which "implies more than intent as volition or intent as awareness of consequences" and requires a showing that the decisionmaker "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." (12) In its equal protection decisions, the Court has stressed the need for a discriminatory purpose and this is consistent with the Court's decisions in disparate treatment cases based on the antidiscrimination statutes. (13) As the Court stated in Reeves v. Sanderson Plumbing Products, Inc., "[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." (14) This means that "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision," (15)

   Much has been written in recent years about unconscious discrimination and implicit bias or stereotypes. (16) This relatively recent research raises important questions about whether our antidiscrimination laws, at least as interpreted, are misguided insofar as they primarily address intentional discrimination at the point of the challenged decision, (17) while much discrimination may be the result of implicit or unconscious stereotypes. To the extent courts require plaintiffs to show intent at the point of the challenged decision, they have not adopted recent psychological and behavioral theories in understanding the nature of discrimination. A decisionmaker who chooses to make decisions based on stereotypes rather than individual assessments, (18) has made a conscious decision to disfavor members of a group he views negatively. This decision to discriminate is implemented each time the decisionmaker excludes a candidate who is a member of a disfavored group. At the point where the candidate is excluded the decisionmaker may have acted unconsciously in the sense that the actual decision was predetermined.

   Taking into account recent psychological research related to implicit bias and discrimination, this article will address proof of intent in disparate treatment cases. (19) Part II of the article will examine a likely source of proof of discrimination--comments made by agents of the defendant. Courts frequently discount such comments, labeling them as "stray remarks" (20) and either excluding them as evidence or determining that they are insufficient to defeat a motion for summary judgment. Derogatory comments directed at an individual, based on certain characteristics the speaker attributes to the individual, provide substantial insight into how the speaker assesses people. For this reason, such comments--even standing alone--provide direct evidence of purposeful or intentional discrimination and may be the only available evidence. (21) It has also acknowledged a number of different methods of proving intentional discrimination. Part III explores recent psychological research and theories, which question both the laws intended to address discrimination and the courts' interpretations of them, as well as the proof schemes. Assuming plaintiffs alleging a violation of the Equal Protection Clause or an antidiscrimination statute must show intentional discrimination, Part IV discusses the implication of the psychological research in proving such discrimination, suggesting the existing proof schemes should be modified or adjusted, with more emphasis on the direct method and the mixed-motive defense.

2. CURRENT APPROACHES TO PROOF IN DISPARATE TREATMENT CASES

   To understand the shortcomings of the current approaches to proof in disparate treatment cases, it is necessary to discuss these approaches in some detail. The courts have interpreted most antidiscrimination laws in a narrow fashion that is not required explicitly by the language of the statutes. For example, Title VII makes it an

   unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. (22) This language does not clearly require proof of purposeful or intentional discrimination. "It would be reasonable to interpret this language as simply requiring proof of causation without proof of intent," so that a Title VII plaintiff would have to establish only that the protected status "made a difference" or "played a role" in the challenged employment decision. (23) After noting that some courts have recognized the role of "unconscious application of stereotyped notions of ability" in age discrimination cases, (24) Professor Krieger says

   [i]t is hard to understand why a court would assume that race discrimination could not, as easily as age discrimination, result from the unconscious application of stereotyped notions of ability or other characteristics. It is also difficult to understand why a court would assume that race discrimination results exclusively from a deliberate desire to exclude members of a particular racial group from the workforce. (25) The courts' questionable interpretation of Title VII and other antidiscrimination statutes, requiring most plaintiffs to prove intentional discrimination, (26) is consistent with the Supreme Court's determination that the Equal Protection Clause of the Fourteenth Amendment reaches only intentional discrimination. (27) The courts recognize two methods of proving intentional discrimination: the direct method and the indirect method, (28) with a mixed-motive defense available in some cases.

   1. Indirect Method

      The indirect method, referred to as the McDonnell-Douglas proof scheme, and used most often in employment discrimination cases, establishes a three-step burden-shifting framework. First, the plaintiff must establish a prima facie case. (29) For example, an applicant for a position claiming her application was rejected because of sex can establish a prima facie case by showing (i) she is a member of a protected group, (ii) applied for an open position, (iii) she was qualified for the position, and (iv) her application was rejected and the employer hired a male, or the position remained open and the employer continued to seek applications from persons with qualifications similar to the plaintiff's. This creates a presumption of discrimination. (30) Second, the burden of production (31) then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged action. (32) Third, assuming the employer meets this minimal burden, the plaintiff, who retains the ultimate burden of persuasion, can establish intentional discrimination either directly by showing "that a discriminatory reason more likely motivated the employer or indirectly by showing that the proffered explanation is unworthy of credence [pretext]." (33)

      The McDonnell-Douglas proof scheme, including the presumption it creates, represents a recognition that "the question facing triers of fact in discrimination cases is both sensitive and difficult," and that "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes." (34) However, after each side meets its initial burden "the McDonnell Douglas framework--with its presumptions and burdens"--disappears and the sole remaining issue is "discrimination vel non." (35) Thus, proving intentional discrimination remains difficult because it is easy for defendants to articulate a nondiscriminatory reason(s) for the challenged decision.

      For a variety of reasons, the indirect method provides plaintiffs with little assistance in proving disparate treatment. First, some circuits have modified the prima facie case requirements articulated by the Court in McDonnell-Douglas, particularly the fourth factor. (36) For example, instead of requiring a plaintiff claiming sex discrimination in...