The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination

I. 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. …