Dismantling the Intent Doctrine and Healing
Racial Wounds
By Susan Kiyomi Serrano
Research Director/Attorney at Law,
Equal Justice Society
Originally
published March 7, 2005, on the American
Constitution Society Blog.
“Given
the public injunction against racism and the legal ban on
intentional race discrimination, why is there so much racial
angst, so much confusion and anger, and so little harmony?”
[1]
Repairing
the frayed and sometimes broken relationships between racial and
ethnic groups is an imperative for the 21st Century. The history
of racism in American law and culture has left undeniable scars
on racial communities and on society’s moral fabric. Healing
deep wounds is integral to healthy present-day racial interactions. [2]
Race
and racism, however, are topics often difficult to discuss. How
do we develop the concepts and language we need to deal with historical
and ongoing discrimination and healing “in ways that build, rather
than destroy, relationships?” [3]
One
component of racial healing is justice under law. Justice is
difficult to achieve when the law fails to reflect the actual
experiences and perceptions of communities who have seen and felt
discrimination. [4] The constricted “intent doctrine”
that permeates antidiscrimination law, for example, ignores much
of what we know about the dynamics of discrimination and therefore
deprives many of redress for discrimination.
The
intent doctrine requires plaintiffs to prove the near-impossible:
a decisionmaker’s specific intent to discriminate. [5] In cases alleging violations of the Equal Protection
Clause, for example, it is not enough for a plaintiff to show
that the defendant acted with knowledge that its actions would
have a discriminatory impact on an identifiable racial group.
Instead, plaintiffs much show that the defendant “selected or
reaffirmed a particular course of action at least in part ‘because
of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.”
[6] If a plaintiff cannot overcome these hurdles,
the law will not recognize the discrimination he or she has experienced,
even though some form of discrimination has come into play.
The
“intent” standard is ineffective to remedy continuing racial inequality
and disparity because it fails to reflect how a large part
of discrimination actually occurs. The doctrine views discrimination
as an isolated, individual phenomenon resulting from the specific
and identifiable “intent” or bias of a sole actor or set of actors.
But what about decisionmaker actions that do not involve “intent”
to discriminate, but involve subconscious or institutional bias?
In such cases, would the intent requirement undermine a viable
discrimination claim?
A
New Way to Redefine How Discrimination Occurs: Social Cognition
Theory and Critical Sociology
Substantial
empirical and theoretical work in cognitive social psychology
and critical sociology offers new progressive formulations for
antidiscrimination law. This impressive body of research has
confirmed that much of society’s racism is not a series of unconnected,
intentional acts, but is a collective, historically-influenced,
institutionalized and often subconscious process.
According
to social cognition theory, all of us have cognitive biases
that influence how we perceive and make decisions about other
people. [7] In other words, the behavior
of human beings is often guided by racial and other stereotypes
of which we are completely unaware.
[8] Specifically, the human mind relies on categorization
as a basic tool for interpreting perceptions, encoding those perceptions
into memory, and making both conscious and subconscious decisions
based on those perceptions and memories. “[P]eople continually
use cognitive shortcuts—exaggerations, oversimplifications, generalizations—to
allow them to prioritize and, in some gross way, make sense of
the overload of incoming information. Racial stereotyping is
one method that people employ almost automatically in order to
understand their surroundings.”
[9]
These
cognitive filters and shortcuts distort social perception, judgment,
and decisionmaking. This often occurs beyond the decisionmaker’s
awareness, and without the specific intent to favor members of
a particular social group.
This
subconscious process contributes to discrimination in several
ways. As a result of this stereotyping process, people perceive
members of outgroups to be an “undifferentiated mass”—they all
look the same. Favorable traits are subconsciously assigned to
the individual’s own group, and disfavorable traits are assigned
to outgroups or “others.” People recall negative behavior of
outgroup members and tend to favor ingroup members in the allocation
of rewards even in the absence of blatant prejudice, ill-will
or animus.
Organizational
sociology supports and supplements the conclusion that
discrimination can occur independent of any invidious intention.
This body of work similarly has concluded that discrimination
can be built into institutional structures, practices and norms—it
is in the fabric of how institutions work. Actors within these
structures act according to established institutional norms and
practices that, sometimes, reflect discriminatory beliefs. In
other words, the discrimination that some groups suffer results
not from the tyrannical acts of a dominant ruler, but from the
daily practices of a generally well-intentioned society—it is
“embedded in unquestioned norms, habits, and symbols.”
This
extensive empirical and theoretical work shows that the current law ignores much of what we
understand about how both the human mind and societal structures
work. The “intentionalist” view of
discrimination and the law linked to it thus misunderstand the
actual cognitive dynamics of discrimination and the impacts of
institutional structures on the daily lives of racial communities.
Many of these powerful studies and theories,
however, are not being fully utilized on the front lines of the
political debate or in courtrooms by civil rights advocates.
Implications for Racial Healing and Justice Under Law
The
sociological and psychological studies on subconscious and institutional
bias can be used in the public discourse to talk about and address
racial healing. In general, on a conscious level, people want
to be free of racism, but our “cognitive shortcuts often will
override even volitional good will.”
[10] Most people can and do act in a
reasonably nonprejudiced way when they are thinking that they
might do so, but demonstrate remarkably deep-seated stereotyping
in the thousands of other circumstances that happen every day.
[11]
Talking
about race in terms of healing rather than blame provides an opportunity
to talk about race and racism in ways
that build, rather than destroy, relationships. [12]
Part of this healing process involves educating each other about
the ways in which subconscious bias affects how all of us make
judgments and decisions. Indeed, the research “shows that
unconscious bias may be reversed for subjects holding conscious
egalitarian views once the unconscious bias is brought to the
subject’s attention.”
[13]
These
studies also provide the tools to begin to redefine antidiscrimination
law. The research can be used to craft practical and incremental
steps to introduce a new understanding of discrimination into
the law using existing case language, but in a fashion that fits
closely with psychological and sociological work on how discrimination
actually operates. A long-term incremental transformation of
“intent” will entail blending innovative legal strategies and
argument, scholarship, media, and public education efforts.
The
Equal Justice Society (EJS) has long focused its work on intent
and bias through our conferences, briefs, reports and writings,
and we have assembled an impressive working group that has participated
in a series of conference calls to discuss both long-term strategy
on intent as well as immediate approaches for litigating intent
in pending cases.
EJS
is now bringing together key individuals and groups from various
disciplines to create a coordinated strategic plan (both long-term
and short-term) for dismantling the Intent Doctrine.
Specifically,
participants are: (1) identifing cases and areas of law where
the reframing of intent doctrine is needed; (2) learning about
the latest empirical and theoretical studies in cognitive psychology
and organizational sociology on how discrimination actually occurs
(subconsciously, institutionally, etc.); (3) discussing existing
scholarship in this area (legal and otherwise); (4) discussing
possible long-term incremental legal strategies to reframe the
intent doctrine; and (5) brainstorming ways to introduce a more
accurate understanding of discrimination into the law and into
the public consciousness (media, law reviews, news articles, op-eds,
etc.).
EJS
is also hosting its first annual writing competition on the Intent
Doctrine. The competition is an integral part of the EJS effort
to provide lawyers with the tools to challenge the faulty assumptions
of the “Intent Doctrine” and to develop long-term strategies for
introducing a more accurate understanding of discrimination into
the law. For more information, please visit: http://www.equaljusticesociety.org/studentessay2005/index.html.
[1] Eric Yamamoto,
Interracial Justice: Conflict and Reconciliation in Post-Civil
Rights America 83 (1999).
[4] Mari J. Matsuda, Looking to the Bottom: Critical
Legal Studies and Reparations, 22 Harv. C.R-C.L. L. Rev. 323, 324 (1987)
(“[T]hose who have experienced discrimination speak with a special
voice to which we should listen. Looking to the bottom—adopting
the perspective of those who have seen and felt the falsity
of the liberal promise—can assist critical scholars in the task
of fathoming the phenomenology of law and defining the elements
of justice.”).
[5] “Proof
of racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” Village of
Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252,
265 (1977). According to the United States Supreme Court, “official
action will not be held unconstitutional solely because it results
in a racially disproportionate impact. ‘Disproportionate impact
is not irrelevant, but it is not the sole touchstone of an invidious
racial discrimination.’” Id. at 264-65 (citing Washington
v. Davis, 426 U.S. 229, 242 (1976)).
Claims
alleging violations of Title VI of the Civil Rights Act of 1964
(which prohibits discrimination on the basis of race, color,
and national origin in programs and activities receiving federal
financial assistance), also require a showing of discriminatory
intent. See Alexander v. Sandoval, 532
U.S. 275, 281 (2001) (“Title
VI itself directly reach[es] only instances of intentional discrimination.”)
(citation omitted).
Title
VII of the Civil Rights Act of 1964 (which prohibits discrimination
in employment on the basis of race, color, religion, sex, or
national origin) prohibits “not only overt discrimination [“disparate
treatment”] but also practices that are fair in form, but discriminatory
in operation [“disparate impact”].” Griggs v. Duke Power Co.,
401 U.S. 424, 431 (1971) (brackets added). To prove “disparate
treatment” under Title VII, a plaintiff must demonstrate that
the “employer . . . treats some people less favorably than others
because of their race, color, religion, sex, or national origin.”
Int’l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335 n.15
(1977). Proof of discriminatory intent in disparate treatment
cases, “is critical, although it can in some situations be inferred
from the fact of differences in treatment. Id. The
central issue is whether the employer’s actions were motivated
by discriminatory intent, which may be proved by either direct
or circumstantial evidence. As Professor Linda Krieger has
observed, “under existing law, the disparate treatment plaintiff
must prove not only that she was treated differently, but that
such treatment was caused by purposeful or intentional discrimination.
Particularly in the context of race and national origin, discrimination
is represented as resulting from the decisionmaker's discriminatory
animus towards members of the plaintiff’s racial or ethnic group.”
Linda Hamilton Krieger, The Content of Our Categories: A
Cognitive Bias Approach to Discrimination and Equal Employment
Opportunity, 47 Stan. L. Rev. 1161, 1168 (1995). In “mixed
motive” cases under Title VII, where the employer makes an adverse
employment decision based on both legitimate and nonlegitimate
reasons, the plaintiff must show that an impermissible reason
such as race or gender played a “motivating part in an employment
decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989).
The employer “may avoid a finding of liability only by proving
that it would have made the same decision even if it had not
allowed [race or] gender to play such a role.” Id. at
245.
In
contrast, claims based on “disparate impact” theory “involve
employment practices that are facially neutral in their treatment
of different groups but that in fact fall more harshly on one
group than another and cannot be justified by business necessity.”
Int’l Brotherhood, 431 U.S. at 335 n.15. A plaintiff
advancing a claim of discrimination under disparate impact theory
need not prove discriminatory intent. See id.
[6]
Personnel Adm'r of Massachusetts v. Feeney, 442 U.S.
256, 279 (1979) (emphasis added) (“‘Discriminatory purpose’
. . . implies more than intent as volition or intent as awareness
of consequences. . . . It implies that the decisionmaker .
. . selected or reaffirmed a particular course of action at
least in part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group.”).
[7] Charles R. Lawrence,
III, The Id, the Ego, and Equal Protection: Reckoning with
Unconscious Racism, 39 Stan
L. Rev. 317, 323 (1987) (“T]he theory of cognitive psychology
states that the culture—including, for example, the media and
an individual's parents, peers, and authority figures—transmits
certain beliefs and preferences. Because these beliefs are so
much a part of the culture, they are not experienced as explicit
lessons. Instead, they seem part of the individual's rational
ordering of her perceptions of the world. The individual is
unaware, for example, that the ubiquitous presence of a cultural
stereotype has influenced her perception that blacks are lazy
or unintelligent. Because racism is so deeply ingrained in our
culture, it is likely to be transmitted by tacit understandings:
Even if a child is not told that blacks are inferior, he learns
that lesson by observing the behavior of others. These tacit
understandings, because they have never been articulated, are
less likely to be experienced at a conscious level.”).
[8] Gary Blasi,
Advocacy Against The Stereotype: Lessons From Cognitive
Social Psychology, 49 UCLA L. Rev. 1241, 1275 (2002).
[9] Linda
Hamilton Krieger, The Content of Our Categories: A Cognitive
Bias Approach to Discrimination and Equal Employment Opportunity,
47 Stan. L. Rev. 1161, 1188 (1995). Applying
cognitive psychology, Professor Krieger examines the assumptions
about human inference embedded in current disparate treatment
theory and questions the premise that discrimination necessarily
manifests an intent or motive. She suggests that a large number
of biased employment decisions result not from discriminatory
motivation, but from a variety of unintentional categorization-related
judgment errors characterizing normal human functioning. See
also John F. Dovidio & Samuel L. Gaertner, Aversive
Racism and Selection Decisions: 1989 And 1999, 11 Psychol. Sci. 315 (2000); John F. Dovidio et al., Implicit
and Explicit Prejudice and Interracial Interaction, 82 J.
Personality & Soc.
Psychol. 62 (2002); Allen R. McConnell & Jill M.
Leibold, Relations Among the Implicit Association Test, Discriminatory
Behavior, and Explicit Measures Of Racial Attitudes, 37
J. Experimental Soc.
Psychol. 435 (2001); Samuel R. Sommers & Phoebe C.
Ellsworth, White Juror Bias: An Investigation Of Prejudice
Against Black Defendants in the American Courtroom, 7 Psychol.
Pub. Pol’y & L. 201 (2001); Steven J. Spencer et
al., Automatic Activation Of Stereotypes: The Role Of Self-Image
Threat, 24 Personality
& Soc. Psychol. Bull. 1139 (1998).
[10] Judith Olans Brown, et
al., Some Thoughts About Social Perception and Employment
Discrimination Law: A Modest Proposal for Reopening the Judicial
Dialogue, 46 Emory
L.J. 1487, 1497 (1997).
[11] See Yamamoto, supra note 1, at 188-89 (“This
idea is reinforced by a ‘strain theory’ of unconscious racism—in
which the recognition of one’s racism collides with one’s sanguine
self-perception of egalitarianism, and the resulting strain
causes one to deny the racism.”).
[13] Deana A. Pollard, Unconscious Bias
and Self-Critical Analysis: The Case For A Qualified Evidentiary
Equal Employment Opportunity Privilege, 74 Wash.
L. Rev. 913, 915-16 (1999).
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