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Excerpted From: Daniel Masakayan, The Unconscious Discrimination Paradox: How Expanding Title Vii to Incorporate Implicit Bias Cannot Solve the Issues Posed by Unconscious Discrimination, 25 George Mason Law Review 246 (Fall, 2017) (Law Student Comment) (279 Footnotes) (Full Document)

DanielMasakayanFor some journalists and commentators, the election of Barack Obama as America's first African-American president, and the candidacy of Hillary Clinton as the first female major party presidential candidate signaled a shift in a major social framework--a shift wherein race and sex have become unimportant, and where minorities can attain equal employment opportunities. Nevertheless, even in the midst of these proclaimed victories for minorities, and notwithstanding mainstream attitudes of social equality, it is difficult to claim that America exists in a post-racial or gender egalitarian society. In the wake of the 2016 U.S. Presidential Election, reports of continued racism and sexism have garnered increased attention in the news and across social media. Discriminatory attitudes still exist in the social context, and victims of these discriminatory acts continue to suffer. As a result, advocates for social equality have increasingly turned to legal measures to combat pervasive discrimination and elicit social change.

One specific area that has garnered widespread attention in the last fifty years has been the American workplace. In an era of magnified focus and societal awareness on issues surrounding race and sex discrimination, society has increased pressure on employers to address, mitigate, and eradicate these issues. In 1964, Congress passed Title VII of the Civil Rights Act in an attempt to end widespread forms of employment discrimination. The Supreme Court has made clear that, because Title VII was created to eliminate discrimination while preserving workplace efficiency, it in turn “tolerates no racial discrimination, subtle or otherwise.” Nevertheless, while plaintiffs have successfully employed Title VII to combat direct and overt cases of intentional discrimination, Title VII has failed to address a common form of discrimination that pervades employment settings nationwide: unconscious discrimination based on implicit bias.

Implicit bias is widespread, and affects our unconscious attitudes, feelings, and aversions to certain social groups. Because implicit biases affect the subconscious and do not cause an overt intent to discriminate, they present a unique problem for Title VII. Thus, there remains a major unsolved dilemma for victims of discrimination in the United States. As currently applied, Title VII addresses solely conscious discrimination, thus neglecting to protect individuals from latent racist, sexist, or discriminatory attitudes.

The relevant question is paradoxical, yet carries heavy legal implications: how can an employer discriminate against his employee without being aware of his biases and discriminatory propensities? Congress enacted Title VII in an attempt to target discrimination, yet because it fails to address unconscious discrimination or pervasive implicit bias, it only targets a segment of a larger problem. For employers who subconsciously deny employment to minorities based on their race or sex, or employers who unknowingly treat their employees differently because of their race or sex, an anti-discrimination law focused solely on intentional discrimination fails to curb the negative effects for victims of unconscious discrimination. Conversely, since Title VII does not provide adequate protections under the law, job candidates and employees subject to stereotypes or subtle, unconscious discrimination continue to be victimized simply due to their membership in a particular protected social group.

Advocates for social justice and equality argue that, because Title VII only focuses on overt or conscious discrimination, it ultimately falls short in fulfilling Title VII's larger policy goal: to eradicate all discrimination. Given the shortcomings of the current application of Title VII, much of the literature on this topic has focused on incorporating implicit bias into the current legal framework. Current scholarship argues that recognizing the pervasive nature of implicit bias under Title VII will be advantageous to current victims of unconscious discrimination because it would allow the courts to address the shortcomings of the law, specifically, the inability of the current framework to address implicit discriminatory attitudes. The current literature on this topic assumes that expanding the scope of Title VII to recognize implicit bias as a motivating factor is a desirable means to combat widespread societal discrimination. Nevertheless, the same scholarship fatally ignores the clear prudential issues surrounding such an expansion, and the potential disadvantages to plaintiffs in recognizing implicit bias in Title VII litigation. The current literature overlooks the tangible and practical effects of implicit bias on courts under the Federal Rules of Evidence (“FRE” or “Rules”), and how courts might actually handle evidence of implicit bias in a jury trial. As this Comment illustrates, the recognition of unconscious discrimination and implicit bias in the context of Title VII poses dire evidentiary issues for courts under the current Rules and will in the long run prove counterproductive to Title VII's legislative purpose.

Herein lies the paradox for victims of unconscious discrimination: if the courts fully recognize implicit bias in the context of Title VII litigation, victims will face additional burdens and risk further discrimination. Thus, this Comment maintains that courts should not attempt to incorporate implicit bias into the current legal framework of Title VII because it will hurt potential victims of unconscious discrimination by creating evidentiary burdens that will paradoxically limit and deter litigation.

Part I provides a brief overview of unconscious discrimination and implicit bias, their continued presence in the workplace, and the difficulties in detecting and measuring them.

Part II discusses the current legal framework under Title VII and the various barriers and shortcomings of the current legal framework in addressing implicit bias. These include the statutory language of Title VII, the inability of disparate impact theory to address the problems of unconscious discrimination, the lack of clarity provided by the courts, and the burdens that implicit bias evidence might face under the Rules. Part II also outlines the possible strategies courts may employ to incorporate unconscious discrimination into the Title VII scheme. Part III describes why the issue of unconscious discrimination is now relevant in the field of antidiscrimination law.

Part III also describes how various legal and prudential factors create an “unconscious discrimination paradox,” wherein the proposed expansion of Title VII ultimately fails to curb the issues posed by implicit bias, and, ironically, further harms victims of unconscious discrimination.

Part IV suggests that, because litigation is ineffective in the domain of implicit bias, solutions outside litigation will better allow society to combat unconscious discrimination and implicit biases.

[. . .]

Ignoring the real issues of implicit bias inhibits societal progress and perpetuates discriminatory attitudes. Although implicit bias is a clear, pervasive problem in society, that does not mean that litigation is the proper vehicle for combatting these unconscious and innate attitudes. Paradoxically, if courts open the door for plaintiffs to bring claims of unconscious discrimination under Title VII, there will be several evidentiary and practical barriers that in the long run may actually deter future litigants and further harm victims of implicit bias. This is the “unconscious discrimination paradox.” Thus, because expanding Title VII to include unconscious discrimination threatens to disproportionately burden plaintiffs and make discrimination potentially worse for victims of implicit bias, it is in society's best interest to maintain the legal status quo.

Advocates for anti-discrimination movements must consider strategies beyond the courtroom and focus their efforts on the workplace or classroom. Through education, and by allowing individuals to encounter their own implicit biases, extra-judicial strategies can be an effective vehicle for real social change. Only when society can rid itself of its own ignorance of implicit biases can we hope to take real steps toward eradicating all forms of discrimination-- conscious and unconscious. 

This is dedicated my wife and best friend Caitlin. I'd like to thank my mom and my dad for their unending support in this process. I would also like to thank Mr. Stephen Robinson for his guidance.