Too often, courts will exclude or minimize evidence of explicit bias when considering discrimination claims, said Vanderbilt law professor Jessica Clarke in a paper recently published in the Northwestern University Law Review. However, she argues, that overly cautious approach can further exacerbate the very inequality such legal remedies seek to correct.
“Explicit bias was supposed to have an upside for lawyers who fight discrimination, because it makes discrimination easy to identify,” she said.
Most current legal scholarship focuses on implicit attitudes deeply embedded in schools, workplaces, housing markets and other systems that foster discrimination. “But unfortunately, recent scholarship has paid little attention to overt, blatant forms of bias, and courts are actually surprised by it,” she said.
Judges, Clarke said, generally shy away from attempting to divine the intentions behind biased behavior, and she argued that this makes them too generous in giving biased actors the benefit of the doubt. Likewise, they cite concerns about dooming otherwise good policies that may have been the product of bad intentions, chilling free speech and triggering backlash. This has led to judges dismissing discrimination claims summarily rather than bringing them before a jury.
In the article, Clarke cited three key concepts whose misapplication or overuse have contributed to the problem.
Facial neutrality: This principle argues that as long as a law targets everyone equally, it cannot be discriminatory, even if the intention was to discriminate. Though the Supreme Court has largely turned its back on this interpretation, it continues to inform arguments supporting discriminatory policies to this day.
Rationalized bias: This rule states that discrimination may only be considered if a policy was shown to be enacted because of, rather than in spite of, a biased outcome. This, too, has been used to justify policies that discriminate in order to achieve neutral ends, like public safety.
The ‘stray remarks doctrine:’ This doctrine states that discriminatory comments made by an employer outside of a decision-making context cannot be considered as evidence of biased employment decisions. The Supreme Court takes a more relaxed approach, but lower courts continue to rely on this extremely strict—overly strict, Clarke argues—standard when considering explicitly biased statements in a variety of contexts.
Clarke said that courts need to take a more nuanced view than they have been when addressing discrimination claims, and take explicit bias seriously.
“One court dismissed a case brought by a female investment banker whose supervisor routinely referred to her using crude sexist epithets by reasoning that his remarks were irrelevant to the question of whether she was paid less in bonuses than her male subordinates because of sex discrimination,” Clarke said. “If courts ignore or fail to confront explicit forms of discrimination, cases that deny justice to victims of discrimination may become the norm.”
Clarke emphasized her argument is not that discrimination is never morally or legally justified. “There may be compelling reasons to discriminate, but that’s a separate question from whether discrimination occurred,” she explained.
She recommends that federal courts dispense with the “stray remarks” doctrine altogether, as the California Supreme Court has already done. “Courts should consider explicit bias in discrimination cases according to normal rules of evidence,” she said.
With reporting by Grace Renshaw