Editor Note - Attached is the first of a segmented article regarding Title VII. I find the article very helpful and is valuable to anyone who gets involved in claims of discrimination. I hope you enjoy it. Best regards, Jim Schwartz
There are a bevy of statutes whose primary aim is ending racial discrimination in the employment context. The centerpiece of this effort is Title VII of the Civil Rights Act of 1964.1 Despite the array of laws prohibiting racial discrimination in the workplace, this phenomenon persists and works to the detriment of racial minorities seeking equal treatment at work.2 The majority of Americans have adopted an egalitarian attitude toward race, and what were once overt instances of racial discrimination have become surreptitious.3 However, this subtle concealment does not change the fact that racial discrimination is a fact of life for minority employees. Wage disparities, undesirable assignments, and denial of access to training and other opportunities continue to plague racial minorities.4 Bias often operates below the surface, and combines with the boundaryless workplace to create problems that Title VII and the judiciary are ill-equipped to handle.5
Although Title VII was enacted to confront racial discrimination in the workplace, the courts have lagged behind in addressing the prevalence of subtle racial discrimination that plagues today’s minority employees. This article will describe several categories of employees that have been denied proper protection by the legal system and identify specific ways that the judiciary has taken an overly narrow and simplistic approach to Title VII enforcement. Because the pervasive and subtle nature of this discrimination goes beyond easily understood and identifiable types of racial bias, the statutory and judicial techniques developed to combat overt racial discrimination are simply ineffective against this evolved type of discriminatory treatment.
Modern employers have moved away from the outwardly discriminatory practices of the past, and many have embraced formal policies designed to end racial discrimination against minority employees.6 Deliberate racism has been replaced by cognitive bias that influences the decision making and interactions involving black workers.7 This type of discrimination has been dubbed second generation and encompasses social practices and patterns of treatment that over time work to the detriment of the nondominant, i.e., black, groups.8
This article will examine several categories of subtle racial discrimination and how the current state of the law is not capable of dealing with them properly. Part I of the article will discuss the original intent of Title VII, analyzing the goals and motivations that existed when it was passed. There will then be an examination of the ways in which Title VII and the judiciary have become deficient in handling subtle race discrimination. Finally, this Part will trace the development of subtle racial discrimination, providing a definition of this relatively recent type of discrimination and examples of how it functions in today’s workplace. Part II will then articulate the particular categories. Following the description of each category, it will be demonstrated how both the law and the judiciary have fallen short in protecting the victims of subtle racial discrimination. A short conclusion will follow.
The Original Intent of Title VII and the Advent of Subtle Racial Discrimination
When Title VII was passed, it provided minority employees with a powerful tool to combat the racially discriminatory practices that had plagued the workplace for generations.9 Its structure was designed to address the traditional forms of racial discrimination, which many times took the form of official policies.10 Discrimination against black employees was often accompanied by direct instances of racial animus, leaving little doubt as to the reasons for a discharge or failure to promote.11 However, as the nature of racial discrimination has changed and become much more subtle, it appears that the Title VII framework has become outdated. This Part traces the development of Title VII jurisprudence and highlights several ways in which it is no longer effective in addressing the discriminatory issues faced by today’s black workers. It then goes on to examine the concept of subtle race discrimination and how it has come to pervade the modern employment arena.
The Original Intent of Title VII and the Ways in Which It Has Become Compromised
Due to the history of racial subordination in this country, discrimination based on race is especially disfavored and subject to strict scrutiny.12 The passage of Title VII reflected an ambitious attempt to transform society by eradicating discrimination based on protected characteristics and to promote facially neutral decision making and status-blind employment practices.13 This agenda was embodied in what Senator Hubert Humphrey, one of the champions of the Act, called the “many impersonal institutional processes that nevertheless determine the availability of jobs for non-white workers.”14
Promoting equal opportunities for people of all races, especially blacks, was clearly the driving force behind the passage of the Civil Rights Act.15 This point is further underscored by the fact that race can never be used as a bona fide occupational qualification, preventing any diminishment of the protection afforded to racial minorities.16 The legislative history of Title VII supports the notion that Congress intended to eliminate all forms of workplace discrimination caused by a person’s race, color, sex, religion, or national origin.17 This history and the resulting legislation provided a broad framework to address all forms of discrimination facing racial minorities, whether overt or subtle.
Employment discrimination law is often characterized as serving two purposes. The first is encapsulated in the antisubordination theory, which reflects the expansive goal of eliminating group-based status inequalities.18 The second is embodied by the antidiscrimination principle, which has the narrower objective of ending the unfair treatment faced by individuals when they are subjected to easily identifiable employer conduct.19 When Title VII was eventually put into place, the antidiscrimination approach won out, as it represented a middle ground between those who sought to achieve true equality and those who were interested in maintaining the discriminatory status quo.20
Thus, the central focus of Title VII became to dismantle tangible barriers that operate to disadvantage minority employees.21 These barriers are most commonly conceived of as the traditionally overt and open discriminatory policies, which have become almost nonexistent.22 This more narrow approach, focused on individuals and the unfair treatment they have been subjected to as employees, often fails to adequately recognize and address the true nature of racial discrimination in today’s workplace.
Unfortunately, Title VII falls short of the lofty goals and expectations of those who originally crafted it.23 Title VII was conceived with the antisubordination principle in mind, but the weaknesses contained in its analytical framework, coupled with the unwillingness or inability of courts to fully comprehend how subtle racial discrimination functions, have led the second notion to become the dominant focus where Title VII claims are concerned.24
The Civil Rights Act was last amended significantly in 1991, which raises questions about how its well-worn structures address the subtle discrimination that proliferates in today’s workplace.25 Due to compromises with employers, even the amendments passed by Congress do not fully provide adequate remedy for victims of subtle race discrimination.26 The result is that Title VII still allows for a large measure of racial abuse and mistreatment despite its stated goals of equality and eliminating racial disparities in the job market.27
In many instances the courts have adopted simplistic definitions that require a showing of an intentional and clear-cut racial animus behind any act of discrimination that harms minority employees.28 This approach may seem desirable based on its simplicity, but it misapprehends the modern nature of racism, which is no longer characterized by overtly racist acts.29 Instead, racism has gone underground, and its subtle nature seems to be escaping the attention of courts around the nation.30
The judiciary bears the burden of enforcing Title VII and ensuring the victims of discrimination have adequate recourse. It may appear that the current judicial framework provides plaintiffs a reasonable opportunity to have their claims fairly adjudicated.31 However, a closer examination reveals that there exists a clear bias against recognizing many forms of employment discrimination.32 This judicial bias has been characterized as a “deep skepticism” about the ongoing occurrence of racial discrimination in modern society.33 A large number of courts hold the view that discrimination is rare and most claims are baseless.34 Many courts have created interpretational sideshows, formulations of the law that have little connection to workplace realities and have diminished the effectiveness of Title VII as a shield for victims of racially discriminatory practices.35
Some courts exhibit a more overt bias and hostility to Title VII race claimants.36 Judges may believe that plaintiffs bringing these cases have already received too many breaks along the way, and are merely whining about treatment that does not amount to actionable discrimination.37 Officials exhibiting bias against Title VII race discrimination claimants most often do not necessarily harbor outright animus to these cases, but rather they let their own personal perspectives color their approach to handling the claims.38 These biases certainly impact how a court rules on racial discrimination claims, and helps to explain why these cases are so difficult to win.39
This viewpoint makes it very difficult for plaintiffs to have success in bringing racial discrimination claims. Title VII plaintiffs won only 4.23 percent of pretrial adjudications, compared with 22.23 percent by other civil plaintiffs.40 When going to trial before a judge they won roughly 20 percent, while other plaintiffs won nearly 46 percent of the time.41 Even when these plaintiffs prevail at the trial level, they are far more likely to be reversed by appellate courts, with 54 percent of plaintiff wins being reversed, compared to 11 percent of defendant’s victories.42 These stark numbers appear to indicate a bias on the part of judges against employees bringing claims of race discrimination. This bias may not reflect outright racial animus, but it certainly exhibits hostility toward the notion that subtle race discrimination is alive and well in many workplaces.
In the great majority of Title VII cases, the plaintiff alleges disparate treatment.43 Most courts hearing a disparate treatment case require some showing of intentional discrimination on the part of the employer.44 Proving this intent has always been difficult, and has become even more so as decision makers have become more and more sophisticated in hiding discriminatory intentions.45 When courts require plaintiffs to make this showing, they are failing to take into account recent psychological and behavioral theories that show discrimination often occurs at an unconscious level over the course of many interactions, as opposed to one clearly defined adverse action.46
The plain language of Title VII does not mandate proof of purposeful or intentional discrimination.47 It would not be unreasonable to interpret the statute to require a showing of causation but not necessarily intent.48 It is unclear why courts have chosen to narrow the broad language of the statute, but it is clear that this interpretation unduly burdens plaintiffs who have suffered subtle racial discrimination but struggle to make the showing of intent.
To prove a case of disparate treatment, a plaintiff must establish a prima facie case as outlined in McDonnell Douglas Corp. v. Green.49 Once a prima facie case has been established, the employer has an opportunity to set forth a “legitimate nondiscriminatory reason” for its employment action.50 The plaintiff then has a chance to show that the reason given by the employer is a pretext for discrimination.51 It is not difficult for an employer to articulate some nondiscriminatory reason for its decision, and the burden of proof at all times remains with the plaintiff to show that intentional discrimination has occurred.52 This proof structure may appear to provide both plaintiff employees and defendant employers a fair chance to present evidence supporting their position, but it actually places an onerous burden on employees who struggle to identify clear evidence of the often subtle discriminatory treatment they have faced.
In St. Mary’s Honor Center v. Hicks53 the Supreme Court placed an additional burden on plaintiffs in employment discrimination cases by requiring further proof of intentional discrimination after the plaintiff has proved that the employer’s “legitimate nondiscriminatory reason” was pretextual. In this case, Hicks, a black male, was terminated by his employer for allegedly poor attendance.54 Hicks was able to present evidence that there were white employees who had worse attendance records but were not terminated.55 Prior to this case, many courts would have found for the plaintiff as a matter of law.56 However, the Supreme Court concluded that Hicks had to go beyond proving that the employer’s proffered reason for firing him was pretextual; he had to prove that the adverse action was based on his race.57 This additional step has been labeled pretext plus, and it adds yet another hurdle for victims of subtle racial discrimination to overcome.58 Considering that almost all evidence in these cases is circumstantial and not direct, it is difficult to see how a meaningful number of minority plaintiffs will be able to marshal sufficient evidence to meet the increasingly stringent burdens placed on them by the Supreme Court.
Another example of how the judiciary has constructed obstacles for Title VII is the same-actor principle. This principle holds that where the same decision maker engages in an adverse employment action within a short period of time of making a positive employment decision, there is a strong presumption that the decision maker harbored no discriminatory intent.59 Many courts have found that it would defy common sense for a decision maker to take discriminatory action against a minority person that they had recently hired or promoted.60 The doctrine has become widespread and often presents a serious hurdle for victims of subtle racial discrimination.61
The major problem with the application of this doctrine in such a formalistic manner is that it ignores many of the realities of the modern workplace. The methods of evaluation and changing corporate structures that predominate in many businesses reflect a complex system of decision making and defy attempts to analyze them in a simplistic manner.62 The same-actor doctrine rests on the often faulty presumption that discrimination originates in a single bad actor harboring clear racial animus.63 As will be discussed more fully below, this type of overt discrimination is a thing of the past, and a more searching and nuanced inquiry is required to discover the subtle discrimination that exists today.
Courts have continued to conceptualize discrimination as occurring in moments of specific, identifiable decision making, and struggle to comprehend the ways subtle discrimination functions.64 There has been a failure to recognize the “psychological tax” incurred by blacks who are forced to work in environments where racial discrimination is rampant.65 Thus, courts have consistently held that dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not sever enough to be intolerable.66 The failure by courts to appreciate the true cost, both psychologically and economically, of such treatment has meant that large numbers of black workers are left trapped in damaging environments with no adequate legal protection.
5. Id. at 3. (Boundaryless is used to denote a workplace that has a decentralized and flexible approach to everyday operations, as opposed to the more rigid hierarchical structures that were common in the past.)