Document Type

Article

Publication Title

The Georgetown Law Journal

Abstract

The American workplace is a fractured sphere of public life, in which white men often wield power at the expense of women and people of color. However, that power imbalance is no longer fully imbued with the active animus that characterized the first few centuries of American life; now, much of the damage done by discrimination is done structurally and implicitly. Consequently, the operation of bias and disadvantage is often invisible to employers and employees alike. The problem of discrimination in American life is thus larger and deeper than a few bad actors, and it will be impossible to solve without buy-in from the institutions that perpetuate it. This Article argues that the workplace is one such institution, that it can be a positive agent of change, and that the law is an appropriate venue for creating that change.

Antiracist interventions are predicated on, first, recognizing structural impediments to racial equality and, second, taking deliberately pointed action. One of the law’s primary levers in the pursuit of racial equality is Title VII of the Civil Rights Act of 1964, which seeks to address workplace discrimination. In practice, however, Title VII has been largely unsuccessful in securing equality within the workplace. There are two significant problems. The first is the current burden of proof framework, which in practice requires employees to scrape together the kind of “smoking gun” proof that is often difficult (and sometimes impossible) to f ind. The second is a host of psychological and social factors that enable discriminatory practices while at the same time making it difficult for courts to recognize discrimination.

This Article argues that Title VII’s failures are in part a problem of scope. Specifically, the law is centered on individuals and discrete moments in time and operates from a presumption of nondiscrimination.

Further, employment discrimination cases are inherently hard to prove because they reach back in time and seek to dissect nonphysical and nonconcrete states of mind. Yet there is a vast body of literature that shows most people have discriminatory tendencies that run afoul of the law. We argue that Congress should amend Title VII to shift all burdens of proof and persuasion away from employees in suspect classes who have experienced adverse outcomes and onto employers. This change would ensure that a plaintiff’s prima facie claim of discrimination automatically creates a rebuttable presumption of discrimination, which the employer then has the burden of demonstrating did not occur. By turning the typical analysis of employment discrimination on its head, Congress would be recognizing that discrimination is often structural and implicit, allowing us to achieve a greater recognition of systemic bias. Just as importantly, such a change would signal an acknowledgment to the public, and to employers in particular, that discrimination is far more common than the operation of the law might suggest. It would express a presumption of bias, which would incentivize employers to be more proactive about combating discrimination—even when it comes disguised as social slights, indignities, or apathy.

Publication Date

2024

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