Building on the psychological research and publications indicating that much discrimination is unconscious and the result of implicit bias, this Article addresses the utility of laws that prohibit intentional discrimination in addressing this recently understood form of discrimination. More specifically, does unconscious discrimination violate a statute that prohibits intentional discrimination? The Article argues that the answer is yes.
Unconscious discrimination is the result of stereotyping or categorization, a cognitive mechanism used by most people to simplify the task of perceiving, processing and retaining information about people. Absent a special effort to overcome this cognitive mechanism in making decisions about people, such decisions are frequently made on the basis of the category into which the decisionmaker places the person, rather than an individualized assessment. When a decisionmaker chooses to base decisions on the category into which an individual falls, rather than an individual assessment, the decisionmaker has made an intentional choice. Thus, the argument advanced here is that the intentional decision to discriminate is made when a decisionmaker chooses to use categories rather than an individual assessment, not at the precise point where a specific decision is made. Therefore, while a specific decision to hire or fire may not be the result of intentional discrimination at the point where the decision is made, it is, nevertheless, the product of intentional discrimination because at some point the decisionmaker decided to base decisions on categories rather than an individual assessment.
The Article also discusses the common proof schemes for disparate treatment claims, including the direct method, the indirect method (McDonnell-Douglas) and mixed-motive. When the direct method is properly understood to include circumstantial evidence, it becomes the dominant method of establishing intentional discrimination. The key to proving intentional discrimination is showing that the decisionmaker engages in stereotyping and a likely way to establish this is through comments made by the decisionmaker, not necessarily in the context of the challenged decision. Once it is established that the decisionmaker engages in stereotyping and has a negative view of persons in the challenger's protected group, the burden of persuasion should shift to the one whose decision is being challenged to establish an affirmative defense. What constitutes an affirmative defense, and the effect of such a defense, is explained in the Article.
Understanding how discrimination works, will help guide organizations that want to eliminate all discrimination, including unconscious discrimination. Once discrimination is better understood, preventive measures can be tailored to addressing the problem.
Ivan E. Bodensteiner, The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination, 73 Mo. L. Rev. 83 (2008).