The Situationist

Litigating Unconscious Discrimination – Abstract

Posted by The Situationist Staff on April 10, 2008

image by rahuldlucca on FlickrFranita Tolson has recently posted a fascinating paper, “The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary.” We’ve posted the abstract below.

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The notion that a corporation has a duty under Delaware law to create an environment amenable to diversity is an intriguing idea. Such an environment could address overt discrimination, but more importantly, discrimination that is unconscious or subtle, which is more prevalent. Unconscious discrimination is actionable under Title VII of the Civil Rights Act of 1964 (presumably), but scholars are in agreement that court regulation of it has failed. Contrary to the alternatives suggested in the literature, placing the burden on the firm to regulate discrimination ex ante is more likely to minimize unconscious, discriminatory behavior, at least moreso than tinkering with the ex post remedies available for those few violations that can be proven through Title VII. This article first explains why courts have failed to address unconscious discrimination, a failure that has emerged largely out of respect for employment at will and an unwillingness to infer differential treatment where other explanations are possible. Courts can address only the most extreme cases of unconscious discrimination, which require the presence of certain factors that will allow the court to isolate the unconscious bias. Second, this article proposes other mechanisms for addressing unconscious discrimination that account for its peculiar nature, mainly firm-based remedies that will be more successful than the courts have been in addressing this problem. The difficulty comes in incentivizing the Delaware courts to become involved in the controversy over unconscious discrimination, or in the alternative, convincing firms to address unconscious discrimination without the impetus of litigation. This article shows that such incentive can come from an unlikely blend of the duties of care and loyalty, corporate norms, and economic pressure from corporate giants like Wal-Mart.

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