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Excerpted From: Sheila R. Foster, Causation in Antidiscrimination Law: Beyond Intent Versus Impact, 41 Houston Law Review 1469 (Spring 2005) (321 Footnotes) (Full Document)


SheilaFosterAntidiscrimination law and scholarship have long been engaged in the debate over whether a discriminatory intent or disparate impact test best captures the type of discrimination the law should, or can, prohibit. This Article suggests that we move beyond this dichotomous debate and focus instead on how courts reason about discrimination cases brought under both the intent and impact doctrines. This Article identifies a distinct pattern, or framework, in the way courts reason about discrimination in both types of cases that defies neat doctrinal labels. This reasoning process, which I shorthandedly refer to as “causation,” is at the heart of evidentiary structures in both intent and impact actions. Unfortunately, the reigning distinction between intentional and disparate impact discrimination--an increasingly blurry one obscured the more important focus on the element of causation that, in my view, constitutes the normative core of antidiscrimination law. This Article seeks to shift attention toward this common causal inquiry as a lens into why, despite the persistence of status-based discrimination, so few discrimination claims (either intent or impact based) are successful.

By definition, all discrimination claims require plaintiffs to demonstrate a causal connection between the challenged decision or outcome and a protected status characteristic. That is, when a plaintiff alleges that she has been discriminated against by a particular decision or action, she is essentially making a causal claim about the relationship between her status and that decision or action. Indeed, this causal link defines the very essence of prohibited discrimination under both constitutional and statutory civil rights law. Not all differential treatment of, or disparate impact on, an individual or group is prohibited by the law. The prohibition against discrimination is a prohibition against making decisions or taking actions on account of, or because of, a status characteristic singled out for protection by our civil rights laws or constitutional traditions (which generally include race, gender, nationality, religion, disability, and age).

Cases involving both intentional and disparate impact discrimination thus require courts and juries to interrogate decisionmaking processes and examine their outcomes to assess the causal link between the plaintiff's status and the challenged decision or outcome. In intentional cases, a plaintiff must prove that an individual or group's protected status played a role -- perhaps a predominant or determinative one--in the decisionmaking process that resulted in differential treatment. As many commentators have demonstrated, neither conscious prejudice nor actual animus on the part of the decisionmaker is a necessary element of intentional discrimination under constitutional or civil rights law. To prevail in a disparate impact case, a plaintiff must demonstrate that an adverse, disproportionate impact is brought about by decisionmaking criteria or practices that operate to harm individuals on the basis of a protected status characteristic. Under each doctrine, the ultimate inquiry is the same: How likely is it that the same decision would have been made, or the same outcomes would have resulted, in the absence of the influence of a protected status characteristic?

The status categories protected under antidiscrimination law are often ones that carry a history of pervasive mistreatment, bias, stereotype, social stigma, or persistent disadvantage. Discrimination claims require courts to evaluate whether and how the indicia (or markers) historically associated with these social statuses have influenced particular decisionmaking processes and outcomes in either express or subtle ways. The manner in which courts go about this evaluative exercise ultimately gives content and meaning to the term discrimination, at least as a juridical matter. For that reason, this Article carefully examines the methodology employed by courts to discern whether an adverse decision or outcome more likely than not resulted from the influence of indicia historically associated with status-based discrimination (prejudice, stereotyping, et cetera).

This examination reveals that courts in intent and impact actions share a common way of reasoning about discrimination and, in particular, about the causal inquiry at the heart of discrimination claims. Both intent and impact causes of action are premised on a three-step process of causal inquiry: status inference, neutral explanation, and causal attribution. The plaintiff is expected to introduce status (for example, race or gender) as a possible explanation for the contested decision or outcome. This introduction creates a practical, and often legal, imperative for the defendant to explain its decision or the outcome in status-neutral terms. The factfinder must then decide whether the decision or outcome is more likely attributable to status influences or to the neutral explanation offered by the defendant. Once status influence has been found, the decisionmaker must justify the discriminatory decision; however, this justification occurs only after the causal inquiry has been satisfied.

This three-step causal inquiry is itself based in and reliant upon two types of reasoning processes--counterfactual and contrastive thinking--that social scientists have found dominate causal determinations. For instance, when asking “if X did not occur (or was not present), how likely is it that Y would have happened?” individuals tend both to employ the “what ifs” of counterfactual reasoning in order to evaluate the influence of certain aspects of the occurrence and simultaneously to engage in contrastive reasoning to compare the occurrence with similar occurrences as a way to identify possible explanatory factors. These two reasoning processes not only permeate causal thinking but are also shaped by various influences-- normative expectations and cognitive biases, for example--that critically shape these processes and can have a determinative role on causal attributions.

Beyond illustrating this common causal element, a close examination of these two reasoning processes in antidiscrimination law provides a window into understanding why, despite the existence of generous evidentiary mechanisms, intent and impact actions have ceased being a viable avenue of relief for discrimination plaintiffs. In particular, this Article illustrates that the causal inquiry at the heart of evidentiary structures in both intent and impact actions has, over time, become vulnerable in two respects.

First, these evidentiary structures are deeply vulnerable to attribution mistakes that may occur as a result of unconscious stereotypes and cognitive biases that can distort the causal attribution judgments by legal decisionmakers and factfinders. Current psychological research suggests that unconscious biases and cognitive stereotypes account for much of modern day discrimination. Legal decisionmakers and factfinders are not likely to detect these biases either in themselves or in others when evaluating discrimination claims. This Article demonstrates how the same cognitive biases that give rise to discrimination in society can also distort causal judgments about that discrimination. This danger is embedded in the evidentiary frameworks governing intent and impact cases, which allow the causal inquiry underlying discrimination claims to be determined by contrastive reasoning exercises--for example, explanations seeking to distinguish disparately treated and affected individuals and groups--that invite reliance on the very stereotypical categorization structures at the root of status discrimination. Many discrimination claims fail because courts are uneven at best--and often neglectful--in evaluating these explanations against existing antidiscrimination norms and current understandings about cognitive prejudice and bias.

There is, however, a deeper vulnerability in the evidentiary structure of antidiscrimination law that is more destabilizing to the causal inquiry that lies at its center. This vulnerability is the erosion of certain normative presumptions that underlie the evidentiary structures in intent and impact cases. The U.S. Supreme Court has rooted its evidentiary frameworks in a set of normative assumptions about the existence, operation, and prevalence of status discrimination in our society. Based on these assumptions, the Court has enabled plaintiffs to establish an inference of discrimination (or status influence) by employing a counterfactual heuristic that imagines what decisionmaking processes and outcomes would look like in a world free of discrimination. The Court then considers deviations from those processes and outcomes to be evidence of discrimination. However, despite the formal retention of these evidentiary structures over time, there has been a steady erosion of the normative assumptions underlying them. The erosion of these presumptions has had a correspondingly devastating impact on the ability of plaintiffs to prove status discrimination, especially given the increasing temporal distance from the worst and most overt forms of discrimination, the increasing subtle and structural nature of discrimination, and the shift in public attitudes regarding the existence of status bias.

This analysis, then, calls into question the belief among civil rights advocates that survival of the disparate impact cause of action and the dismantling of the intent standard will preserve the civil rights gains of the past. Although certainly these two steps would appear to stem the “rollback” of these gains, they would ultimately prove to be insufficient and unsatisfactory. Unless this understanding changes in the near future, courts will continue to be an inhospitable forum for discrimination victims, and no amount of doctrinal reform will significantly alter the odds that the court will “see” the increasingly subtle and sophisticated nature of contemporary discrimination.

This Article's analysis proceeds in four Parts. Part II of the Article reviews the social-psychological literature for insight into how causal judgments are made, specifically to explicate the mechanisms involved in, and influential factors on, causal thought processes. This research has found, not surprisingly, that causal judgments are affected by the knowledge, biases, and motivations that individuals bring to the process. Although much of the way that individuals reason about causal judgments in everyday life is automatic, causal judgments are vulnerable to unconscious and deeply entrenched cognitive biases. These biases are particularly pronounced when making causal judgments regarding the relationship between social status characteristics such as race and gender and targeted or challenged decisions and outcomes. More particularly, researchers find that individuals readily accept explanations for actions and outcomes involving status groups that tend to coincide with stereotyped categorization structures for those groups. This tendency results from insufficient weight being given to these cognitive structures in causal reasoning processes and not enough emphasis being placed on scrutinizing or evaluating these structures against real differences between the groups. In order to reduce causal attribution mistakes where these characteristics are at issue, social scientists find that when causal inquiries place the particular social status at the focus of evaluation--for example, a type of counterfactual heuristic--it reduces reliance on stereotypical cognitive structures and results in more accurate causal judgments.

Part III illustrates that evidentiary frameworks in both intent and impact cases reflect the two predominant reasoning processes--counterfactual and contrastive--that social scientists have demonstrated are central to the formation of causal judgments. Through a counterfactual “heuristic,” the Court allows an inference of status influence from circumstantial evidence that normally would not be indicative of discrimination but that becomes salient based on a set of normative assumptions about the way discrimination operates in our society. Contrastive reasoning, too, is central to the evidentiary frameworks in both intent and impact cases, as evidenced by the ubiquity of the “similarly situated” analysis and its focus on identifying distinctions between disparately treated or impacted individuals or populations. Defendants (and courts) rely heavily on this similarly situated heuristic not only to rebut the inference of status influence--for example, by generating plausible neutral explanations for the challenged decision or outcomes--but also to reason whether there is status influence in the first place. Similarly situated, contrastive analysis can also assist a plaintiff in reaffirming the inference of status influence by showing that she is similarly situated to a population or individual who was treated more favorably.

Part IV examines how the evidentiary frameworks in intent and impact cases are vulnerable to the cognitive biases that can distort causal judgments. This vulnerability arises from the tendency for comparative or contrastive reasoning, such as in the similarly situated analysis, to dominate causal judgments. Courts are too accepting and hesitant to criticize explanations for disparate treatments or impacts generated by such reasoning. As the social science research cautions, comparative analysis emphasizes the sufficiency versus the necessity of a causal factor because it focuses on identifying any distinctive feature between the challenged occurrence and a contrasting occurrence as possible explanations. This type of reasoning is also more subject to cognitive biases because of the tendency to consciously or subconsciously rely upon what many believe are natural or innate characteristics of certain status groups, or certain phenomena associated with status groups, that distinguish them from more favorably treated or impacted groups. As such, the predominance of this type of reasoning in causal attribution often leads to incomplete causal judgments in antidiscrimination law. In other words, there is a tendency to sidestep the normative work required of the causal inquiry in antidiscrimination law--for example, in evaluating the various ways that status can influence or bias decisionmakers and outcomes--and attribute stereotype-consistent or subtle discriminatory explanations to neutral causes of a challenged decision or event. Thus, when contrastive analysis is allowed to dominate causal judgments about discrimination, those judgments are rendered vulnerable to the very cognitive biases and discriminatory influences that antidiscrimination law is designed to prohibit.

Part V illustrates a much deeper causal vulnerability in antidiscrimination law, marked by the erosion of the normative understandings underlying the evidentiary frameworks in intent and impact cases. This Part takes a close look at the reasoning of recent cases in the Court's equal protection and civil rights jurisprudence to identify where this erosion has occurred. The Court's most recent jurisprudence illustrates a significant weakening of three presumptions that have supported its evidentiary frameworks in intent and impact cases: the presumption of historical saliency, the presumption of group parity, and the presumption of persistent bias threat. Thus, even if courts could somehow control and contain the cognitive biases that threaten to seep into the evidentiary frameworks, as indicated in Part IV, there would continue to be a huge gap between the reality of status discrimination and its juridical recognition.

[. . .]

It is time to move beyond the debate in antidiscrimination scholarship over the wisdom of a discriminatory intent versus a disparate impact test. As this Article has argued, this debate has obscured in important ways where the real normative work occurs in antidiscrimination law. The question of whether race, gender, or other protected status is the cause of (intentionally or not) the disparate treatment of, or disparate impact on, an individual or group is the central inquiry in both intent and impact cases. Importantly, as this Article has shown, the Court has employed similar causal heuristics to satisfy this inquiry in both types of actions. By looking closely at these heuristics and their evidentiary counterparts, we can see more clearly why neither the discriminatory intent nor disparate impact cause of action can remain fertile ground for relief by plaintiffs claiming unfair discrimination.

This Article identified two key vulnerabilities in current causal analysis in intent and impact cases that, despite the availability of generous evidentiary mechanisms, render the majority of discrimination cases highly likely to be unsuccessful. These vulnerabilities reflect significant shifts in both the way in which courts have come to understand contemporary discrimination and the assumptions that they hold about that discrimination in our society. While many scholars have written about the cognitive biases that can affect employment and other types of decisionmaking that leads to status-based discrimination, courts have not been particularly concerned or scrutinizing of the ways in which those biases can infect decisionmaking about whether discrimination has occurred in a particular instance. More problematically, we have seen a steady erosion of the normative understandings underlying the evidentiary structures used to prove discrimination that have been in place for the past few decades.

This erosion portends a far more fundamental civil rights restoration project than has perhaps been contemplated by those concerned about the decline in antidiscrimination law coverage and protection. In the final analysis, this Article seeks to call attention to the need for more fundamental reform, both in the way that we perceive antidiscrimination jurisprudence and in the types of solutions we seek for its sustainability in the face of evolving patterns of discrimination. What these solutions should look like is a subject for another article. In shifting the focus toward causation, the hope is that future solutions will take up the deeper challenges that constrain the ability of antidiscrimination law to fulfill its potential.

Professor of Law, Fordham University.

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