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Excerpted from: Dayna Bowen Matthew, Health Care, Title VI, and Racism's New Normal, 6 Georgetown Journal of Law & Modern Critical Race Perspectives 3 (Spring, 2014) (444 Footnotes) (Full Document)


DaynaBowenMatthewAn estimated 84,570 minority patients die annually due to health care disparities that result, in no small part, from the unconscious racism that pervades the American health care system. The fact that black and brown patients consistently receive inferior medical treatment than their white counterparts has been documented beyond dispute. These health care disparities persist even after controlling for income, education, geography, socioeconomic status, insurance coverage, and every meaningful comorbidity. Moreover, health care disparities produce disparate health outcomes so that minorities die quicker and sicker in America than whites, solely because of their race or ethnicity. This Article outlines the considerable progress the scientific community has made in understanding physician bias, and argues that changes to law and policy now must follow.

Studies have confirmed that physicians, like most Americans, generally demonstrate pro-white implicit biases against Latinos and African-Americans. These biases are unintentional and arise unconsciously. However, they have been shown to adversely affect physicians' clinical decision-making to the severe detriment of minority patients. For example, in one study, as physicians' anti-black implicit bias levels increased, their likelihood of prescribing the optimal treatment for coronary artery disease to black patients decreased while the frequency with which they prescribed optimal treatment to whites increased. Another pair of studies examined pediatricians' clinical decision-making and found that physicians with greater pro-white implicit biases more readily prescribed pain medication to white children than to African-American children. Other research has suggested that doctors misinterpret population data in their patient assessments, allowing racial stereotypes to influence their perceptions, leading them to automatically associate diseases arising from behavioral choices--such as drug abuse and obesity--with blacks, while being less prompt in accurately identifying these conditions in white patients. Physician implicit biases have been associated with poorer communication between doctors and their minority patients, as physicians hold shorter clinical encounters with minority patients, make less frequent eye contact, verbally dominate exchanges that allow for few questions or comments from minority patients, and share less information with minority patients than with white patients. Certainly, there is little evidence in case law or elsewhere to suggest that bigotry, overt racism, or explicit prejudice are the primary sources of the racial and ethnic discrimination that occurs in medicine. But the fact that these differences are not due to bigotry is very much beside the most important point. Patients from minority racial and ethnic backgrounds are discriminated against in health care, and the outcome of this discrimination is poorer health and shorter lifespans than whites suffer in almost every category. Therefore, the emerging body of literature that points to the influence of providers' implicit biases to explain the regular patterns of disparate medical treatment cannot be ignored.

I argue in this Article that this empirical evidence of physician bias is not only a likely explanation for the stagnant persistence of inequality in health care, but also contributes substantially to the higher morbidity and mortality rates that minority Americans suffer as compared to whites. Moreover, I argue that the available scientific evidence now compels legal scholars and jurists to examine the role that civil rights law should play in addressing the deadly impact of racial discrimination due to physician bias. This Article confronts unconscious racism as a significant cause of health and health care disparities, and argues that the law and policy should meaningfully account for the resulting harms. Just as the Supreme Court has noted in the employment context, in health care, physicians' “undisciplined system of subjective [i.e., unintentional] decision-making can have precisely the same effects as a system pervaded by impermissible intentional discrimination.” Civil rights law was intended to provide redress for precisely such injurious discrimination. Thus, numerous legal scholars have argued fervently for the reform of anti-discrimination laws that fail to reflect that unconscious rather than intentional racism has become the new normal. Sadly, legislators and courts have not responded. I challenge lawmakers' apparent indifference to implicit bias discrimination, and intend to move the somewhat stalled conversation in the legal literature forward, not only by adding health care to the list of environments where implicit biases operate perniciously, but also by adding new scientific findings and new legal solutions to the discourse.

First, I focus specifically on Title VI of the Civil Rights Act of 1964, one of the broadest of the civil rights era statutes, because that law has been almost entirely overlooked in the conversation among scholars about how to address implicit bias discrimination. Title VI has a rich history of being used as an effective tool to eliminate segregation and overt racism in health care and reaches broadly beyond health care to prohibit discrimination by any recipient of federal funds. Next, this Article adds a comprehensive review of the social science literature on malleability: the insight that unconscious prejudices can be altered. I introduce a body of social science literature collected over the past twenty-five years, which shows that unintentional and unconscious biases are neither inevitable nor impenetrable but instead may be intentionally controlled through interventions such as stereotype-negation, exposure to counter-stereotypes, and social norm-shifting in order to reduce the discriminatory effects of implicit biases on physician's clinical judgments and conduct. I propose that this malleability evidence provides a basis for crafting a legal response to unconscious racism; in light of this evidence, physicians and others may be held to a negligence standard of care in Title VI disparate treatment claims-- notwithstanding the Supreme Court's current fetish with what Professor Ian Haney- López has called “malicious” rather than “contextual” intent as a requirement to prove and recover for actionable discrimination. Moreover, malleability evidence provides the moral basis for Congress to amend Title VI and restore private enforcement of disparate impact claims.

In 1987, when Charles Lawrence famously identified the false dichotomy between unconstitutional intentional discrimination and constitutionally acceptable unintentional discrimination, cognitive psychologists had barely scratched the surface of the implicit bias field. Today, a massive evidentiary record is available to show how powerfully unintentional bias informs discriminatory judgments and conduct, and relating that science to anti-discrimination law. Linda Krieger began advocating a cognitive bias approach to equal employment opportunity in 1995. Since then, the implicit bias discourse has focused primarily on employment discrimination and the importance of addressing this form of prejudice under Title VII as well as the Equal Protection clause. Beyond employment, Professors Antony Page and Michael Pitts identified implicit bias as an affront to voting integrity at polling places. Others have considered the limitations of anti-discrimination law that fails to affect the phenomenological realities of implicit bias in criminal justice, media and broadcast policy, jury selection, litigation advocacy, and in judicial selection. Professor Kimani Paul-Emile has thoughtfully asserted that civil rights laws should accommodate patients' racial preferences and Professor Rene Bowser has linked physicians' implicit bias to institutional patterns of racial profiling in health care. However, this Article offers a systematic and comprehensive review of the evidence that individual physicians' unconscious racism has become the new normal form of racial and ethnic discrimination in medicine, which current law completely ignores. This is the first article to present an in-depth treatment of the role that physician implicit bias plays in producing inequality in the health care system; the first article in the legal literature to comprehensively review the social science evidence that implicit biases are malleable; and the first article to examine how this knowledge must change our approach to Title VI anti-discrimination jurisprudence.

In this Article, I make three arguments. First, I argue that the deadly connection between physicians' implicit racial bias and health care disparities in the United States compels legal attention. Second, I argue the scientific evidence collected over more than two decades contradicts the assumption that unconscious racism is inevitable, impenetrable, and inaccessible to human control. In fact, the evidence of malleability demonstrates that unconscious racism is within the intentional control of actors and institutions whose discriminatory judgments and conduct unintentionally harm minority patients. I assert that this evidence of malleability is a legal “game-changer,” as malleability evidence provides the scientific leverage that has been missing from the debate about personal and legal accountability for discriminatory harms that result from unintentional and subconscious racism. Third, I apply the science of implicit bias to advocate reform of Title VI of the Civil Rights Act of 1964. I argue that discrimination due to implicit bias reaches and therefore should be penalized more broadly than courts and legislatures have acknowledged to date. Based on the social science record, Title VI can be restored to an effective legal weapon against lethal discrimination in health care delivery, and wherever the discriminators are recipients of federal funds, whether the racial bias is deliberate and intentional, or subtle and subconsciously motivated.

Part I describes the two shortcomings of current Title VI jurisprudence. This section explains the need for a legislative correction of the courts' shambolic analysis of disparate impact claims, and lays the foundation for a new rule of judicial construction to replace current Title VI jurisprudence, which is sadly out of step with modern forms of discrimination.

Part II turns to the evidence of implicit bias in the American health care system as an exemplar of the un-checked harm caused by an ineffective Title VI.

Part III introduces the scientific evidence that implicit biases are malleable. Because the data in these sections has heretofore been absent from the legal literature--and, as such, supports a fundamental shift in the discourse regarding implicit bias, intentionality, and causation in anti-discrimination law--I carefully review a broad sample of experiments and their results. Part IV puts the malleability evidence to work, providing an evidence-based reconceptualization of Title VI that accounts for reality of contemporary discrimination and the historical goals of the Civil Rights Act of 1964. After responding to the objections to my analysis that are sure to arise, I conclude with a discussion of the restorative impact that reforming Title VI will have beyond the health care context.

. . .

I have argued to restore Title VI to its originally intended scope. The reforms I propose are modest: returning the statute's public-private enforcement model, and implementing a negligence standard of care to regulate unintended discrimination. Yet, these reforms will radically shift the social norm throughout the American health care system, which today tolerates gross inequality in health and health care, creating a new medical norm that values and protects justice and equality for all patients. While reforming Title VI will extend justice and equality well beyond the health care context, it is fitting to return to health care to address the original goals that lawmakers had in enacting Title VI because racial discrimination by hospitals and physicians were fundamental to the law's passage in 1964.

The evidence of how implicit bias works in health care demands a new standard of care for modern medicine. To be sure, there are important issues yet to be discussed by providers and researchers. The evidence that implicit biases influence physicians' clinical decision-making, patient communication, and statistical interpretation requires a deeper conversation among practitioners about their commitment to the ethical principles of justice, non-malevolence, and beneficence underlying the Hippocratic Oath. The empirical record must be expanded. Social scientists must work to understand the extent to which implicit bias infects institutional health care providers, nurses, physician extenders, administrators, insurers, and other actors in the health care delivery system. The social science record regarding minority groups beyond African-Americans is also sorely lacking. However, the need for further research and discussion by providers no longer justifies inaction by lawmakers. The evidence presented in this Article no longer permits lawmakers to remain bystanders as African-, Latino-, Asian-, and Native-Americans live shorter and less healthy lives than whites because they are victims of unregulated physician implicit biases. Unconscious racism is within individual, institutional, and societal control. Unintentional attitudes are subject to intentional control, and, most importantly, carefully structured interventions can directly address the deleterious and deadly discrimination that implicit bias causes.

The science of implicit bias reviewed and updated here provides a solid evidentiary basis for reforming Title VI. The evidence that these biases are malleable affirmatively answers the question of whether it is morally acceptable to find a person culpable for action from unintentional attitudes. And the continuously mounting evidence that minority patients daily are falling victim to unconsciously racist health care in America daily provides the compelling interest that justifies returning Title VI to its originally intended potency so that neither conscious nor unconscious racism in health care may be tolerated as “normal” under the law.

Professor of Law, University of Colorado Law School; J.D., University of Virginia Law School; A.B. Harvard-Radcliffe College.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law