Dave Hall and Brad Areheart have written an article that anyone who cares about employment discrimination and workplace bias should read. In it, they propose to amend Title VII to provide that “when a worker makes a prima facie showing that she is a member of a protected class and has experienced a bad outcome at work, that showing should trigger a rebuttable presumption that the defendant-employer unlawfully discriminated against the worker.” To rebut that presumption, the defendant-employer would have to show “by clear and convincing evidence that the adverse outcome was solely job related for the position in question.” (P. 777-78.) Even if Congress is unlikely to amend Title VII, the authors’ proposal should start a serious discussion about whether and how to address an article of faith, that the courts’ current interpretation of Title VII does not hold liable as many employers for employment discrimination as it should.
At just under 40 pages, the article is an easy read. It provides a good outline of the problem it proposes to solve. Many employers escape Title VII liability for instances of workplace discrimination because of Title VII’s narrow focus on intentional discrimination, a proof structure that tends to search for specific animus-based instances of discrimination. In addition, federal judges tend to see less discrimination than jurors. The authors note that even though much less overt animus exists in society and in the workplace than in the past, substantial employment discrimination manifests through lingering animus, apathy, implicit bias, and structural bias that may be unrecognized.
That, according to the authors, prompts the need for the bias presumption. In so arguing, they discuss prior suggested revisions to Title VII as inadequate by comparison. For example, the authors discuss the benefits and shortcomings of Title VII reform offered by Professor Sandra Sperino and Professor Mark Brodin. The authors argue that those prior proposals would either leave bias-detection to judges who cannot fully identify bias or would not apply to enough cases to matter.
In contrast to the proposals they critique, the authors suggest their proposal would have four principal effects: allow plaintiffs to survive summary judgment, hold employers accountable for explicit and implicit biases they could not use to support a negative job action, force employers “to consider employment polices and actions in the broader context of structural biases,” and drive courts “to consider employment actions in the boarder context of structural biases.” (P. 779.) In addition, they reply to some possible objections: their proposal will cause a flood at the courthouse; it functionally requires just cause; it ends at-will employment, and it will trigger a de facto quota system.
There are concerns and quibbles that even supporters of the general approach may have with the proposal. Indeed, opponents of their proposal would likely have many objections that the authors do not address. For example, the amount of bias that their proposal would reduce or redress is unclear, and the authors do not propose a way to measure it. The authors also do not explain why their proposal imposes a clear and convincing standard of proof on the employer rather than a preponderance of the evidence standard, but they suggest the clear-and-convincing standard is easy to meet by employers who have clear, unbiased reasons for their job actions.
The article provides a specific solution to a specific problem albeit in the context of a larger issue. What role should Title VII or its proof structure play in encouraging a bias-free workplace? The answer may be contested. Some may argue Title VII merely seeks a workplace free of animus-based discrimination without regard to whether free-flowing bias (implicit or otherwise) exists in the workplace. For those people, the bias presumption may appear unnecessary or improper, with the presumption being a liability bludgeon that may provide liability for non-discriminatory behavior and force employers to overcorrect in a manner Title VII does not require. Conversely, the authors appear to suggest the bias presumption merely addresses discrimination that is not being identified under current doctrine, with that–not unfair liability–encouraging employers to address bias before it triggers discrimination. An employer’s desire to avoid liability based on discrimination may lead to a less biased workplace regardless of whether Title VII requires it. The debate the article may foster is critical to have.
This article requires a reader to think on multiple levels. It encourages readers to ponder the bigger issues surrounding how Title VII should apply to the workplace and whether it should be used to attack the somewhat intractable issue of bias, as well as the narrower issue of whether a bias presumption is the right solution. Based on that alone, the article is undoubtedly worth a read.
