the survival of the intentionality doctrine in survival of the intentionality doctrine in employment

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    The Survival of the Intentionality Doctrine in Employment Law: To Be

    or Not to Be? MAURICE WEXLER*

    I. INTRODUCTION ..............................................................................700II. CHALLENGING THE INTENTIONALITY DOCTRINE ..........................701II. THE LONG AND SHORT OF IMPLICIT BIAS .....................................704III. OLD FASHIONED STEREOTYPING AND THE INTENTIONALITY

    DOCTRINE: THEIR GENESIS AND SURVIVAL ..............................705A. One Hundred Fifty Years and Then Some of Explicit Racial

    Discrimination and Stereotyping and the Intentionality Doctrine ............................................................................7051. Racial Stereotyping Becomes Official ......................7062. Racial Stereotyping Reinforced: The Dawning of the

    Intentionality Doctrine .............................................707IV. THE HISTORIC ROLE OF DISCRIMINATORY INTENT AND MOTIVE IN

    EMPLOYMENT LAW ...................................................................712A. Supreme Court Endorses Intentionality Doctrine in

    Employment-Related Disparate Treatment Cases ...........714B. Motive and Intent Defined ................................................724

    V. IMPLICIT BIAS: NO ROOM AT THE INN .........................................726A. Implicit Bias and the Intentionality Doctrine Cannot Co-

    Exist ..................................................................................730B. The IAT and Implicit Bias Theory Strike Out ..................732

    VI. CONCLUSION ..............................................................................744

  • 700 The University of Memphis Law Review Vol. 47

    To be, or not to be, that is the question: Whether tis Nobler in the mind to suffer The Slings and Arrows of outrageous Fortune, Or to take Arms against a Sea of troubles, And by opposing end them? The undiscoverd Country, from whose bourn No Traveler returns, Puzzles the will, And makes us rather bear those ills we have, Than to fly to others that we know not of?1

    I. INTRODUCTION

    Now, and since at least 2004, there has been an enthusiastic and committed collection of the plaintiffs bar, supported by a group of equally zealous academicians, that advocate judicial recognition of the role of implicit bias in employment law jurisprudence. They challenge the vitality of the long-established requirement of demonstrating dis-criminatory intent and motive in proving an alleged violation of laws prohibiting discriminatory disparate treatment.2 Supporters of the role of implicit bias in employment law contend that such recognition must be considered in fulfilling the promise of anti-discrimination law and that legal models of decision making in the workplace should recog-nize and incorporate the empirical scientific understanding about the influence of unwitting bias.3

    * Baker Donelson Bearman Caldwell & Berkowitz, P.C., Memphis, Ten-nesee. 1. WILLIAM SHAKESPEARE, HAMLET, PRINCE OF DENMARK act 3, sc.1. 2. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 e-2, (2012); Eva Paterson et al., The Id, the Ego and Equal Protection in the 21st Century: Building Upon Charles Lawrences Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 CONN. L. REV. 1175 (2008); Beth Potier, Making Case for Concept of Implicit Prejudice, HARVARD GAZETTE (Dec. 16, 2004) (reporting on the cluster of scholars joining a research project at the Radcliffe Institute for Ad-vanced Study, that aims to extend the boundaries of the legal definitions of discrim-ination and challenge the notion of intentionality in the law). 3. Jocelyn D. Larkin, Stereotypes and Decisionmaking: Reconciling Dis-crimination Law with Science, 192 CPER J. 15, 22 (2008); see also Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimina-tion and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 116465 (1995); Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007).

  • 2017 Intentionality Doctrine in Employment Law 701

    They argue that there is a need to develop legal . . . paradigms that acknowledge the modern face of racismboth its overt manifes-tations . . . and also its less visible forms of prejudice and discrimina-tion, including subconscious bias.4 Supporters contend that the ex-isting legal framework recognizes only intentional acts of discrimination . . . . [and] requiring proof of intent is both outdated and largely ineffective in supporting our efforts to advance racial equality and remedy the continuing laws caused by racism.5 Their objective is nothing short of a radical reconstruction of American em-ployment law through judicial activism.

    II. CHALLENGING THE INTENTIONALITY DOCTRINE

    Professors Gregory Mitchell and Phillip Tetlock commented on the challenge to the intentionality doctrine.6 They wrote:

    A group of prominent law professors and social psy-chologists recently joined forces to use the energy gen-erated by research on unconscious forms of prejudice to understand and challenge the notion of intentionality in the law. The first target is anti-discrimination laws emphasis on intentional discrimination, which these scholars claim runs afoul of the psychologists research on implicit prejudice, but the larger target is, the role of intent in all bodies of law.7

    Continuing, the authors posit that:

    4. Paterson et al., supra note 2, at 1179. 5. Id. at 1176. 6. Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 OHIO ST. L.J. 1023 (2006). Professors Mitchell and Tet-lock are nationally recognized scholars with expertise in the analysis of implicit bias and its validity and reliability as a predictor of discriminatory conduct. They have separately, as well as collaboratively, authored a number of scholarly articles and lec-tured on the topic of implicit bias. Each has also served as testimonial or non-testi-monial witnesses in cases involving issues related to implicit bias in the context of employment discrimination. Gregory Mitchell is a professor at the University of Vir-ginia School of Law; Phillip Tetlock is a professor of Psychology and Management at the University of Pennsylvania. 7. Id. at 1028 (citations omitted).

  • 702 The University of Memphis Law Review Vol. 47

    It is easy to be overwhelmed by the sheer volume of la-boratory studies that implicit prejudice advocates cite, by the moral certitude with which they apply psycholog-ical generalizations to the real world, and by the impres-sive credentials they bring to the courtroom. But this would be a big mistake. On closer inspection, we shall discover that the scientific rhetoric accompanying legal application of research is . . . more honorific than de-scriptive. . . . If scientific is used honorifically, it is a tautology that scientific equals reliable; but this tau-tology, obviously, is of no help to a judge trying to screen proffered scientific testimony.8

    Professors Mitchell and Tetlock provide various examples of situations in which implicit bias believers suggest the theory could be useful.9 Those examples are characterized by the authors as but a small part of an ambitious project to use implicit prejudice to remake the law.10

    This article confronts the challenge to abolishing the intention-ality doctrine and explains why it should not succeed. As an alterna-tive to discarding the intentionality doctrine, I suggest that, instead of grappling with the ethereal concept of implicit bias, which has yet to enjoy significant judicial approval in the context of employment law, actual stereotyping remains an effective and fully accepted tool when

    8. Id. at 102930 (citation omitted). 9. Id. at 102627. Replacing the intentionality doctrine with the implicit bias theory would impose liability based upon implicit or unconscious bias. See id. Given the alleged strong automatic preference for certain social groups representing popu-lation (white males) rather than observable, measurable conduct, this would condemn employers to blanket liability despite egalitarian attitude accompanied by the absence of discriminatory intent in their employment-related selection decisions. See id. Adopting such a theory of liability would virtually amount to liability per se and result in the rise of a negligence standard for finding liability in connection with employ-ment selection decisions. That result would be the precise opposite of selection deci-sions based upon individual biases because of race, religion, sex, national origin, or age and disability. See 42 U.S.C. 2000e-2(a) (2012). Displacing or replacing the intentionality doctrine would fail to advance the goals of workplace equality of op-portunity and fair dealing. Instead, it would vitiate decades of judicial precedent, as well as statutory mandates that foster the appearance of mind readers or fortune tellers as experts in employment discrimination cases. In short, it would result in unintended consequences of wholesale disarray in the law of employment discrimination. 10. Id. at 102728.

  • 2017 Intentionality Doctrine in Employment Law 703

    used to demonstrate unlawful employment discrimination, doing so based upon an enduring body of established judicial approval. In mak-ing my case, I trace the judicial origins of the intentionality doctrine as applied to claims of unlawful discrimination and its lapdog, racial ste-reotyping in America. I also trace the historic sources of racial stere-otypic thinking in America, its persistence, and its impact upon our nations legislative and jurisprudential history in its continuing effort to eradic

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