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73 Mo. L. Rev. 83 (2008)
The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination

handle is hein.journals/molr73 and id is 85 raw text is: The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination Ivan E. Bodensteiner* I. INTRODUCTION In most cases alleging discrimination in violation of a federal statute or the U.S. Constitution, the plaintiff must prove disparate treatment, i.e., inten- tional discrimination. These cases arise under several federal statutes that prohibit race discrimination,' including (a) Title VII of the Civil Rights Act of 1964 (Title VII),2 which prohibits employment discrimination based on race, sex, national origin, color and religion; (b) the Civil Rights Act of 1866, as amended in 1870 (§ 1981),3 which prohibits race discrimination in con- tracting, including employment; (c) Title VI of the Civil Rights Act of 1964 (Title VI),4 which prohibits race discrimination in programs receiving federal financial assistance, but addresses employment discrimination only where the federal funds are intended for employment; (d) the Fair Housing Act (FHA),5 which prohibits discrimination in housing based on race, color, religion, sex, national origin, familial status and disability; (e) the Civil Rights Act of 1866, as amended in 1870 (§ 1982),6 which prohibits race discrimination in prop- erty transactions, including housing; and (f) the Civil Rights Act of 1871 (§ 1983),7 which provides a cause of action against state and local govern- * Professor of Law, Valparaiso University School of Law. 1. Federal statutes addressing other types of discrimination also require the plaintiff to prove disparate treatment. See, e.g., (a) the Age Discrimination in Em- ployment Act (ADEA), which prohibits age discrimination in employment, 29 U.S.C. §§ 621-634; (b) the Americans with Disabilities Act (ADA), which prohibits dis- crimination based on a disability in employment as well as public accommodations and public (government) services, 42 U.S.C. §§ 12101-12213; (c) § 504 of the Reha- bilitation Act (§ 504), which addresses discrimination based on disability in programs receiving federal financial assistance, 29 U.S.C. § 794; and (d) Title IX of the Educa- tion Amendments of 1972 (Title IX), which prohibits sex discrimination by educa- tional institutions receiving federal financial assistance, 20 U.S.C. §§ 1681-1688. 2. 42 U.S.C. §§ 2000e-2000e-17 (2006). 3.42 U.S.C. § 1981. 4. 42 U.S.C. §§ 2000d-2000d-7. 5. 42 U.S.C. §§ 3601-3631. 6. 42 U.S.C. § 1982. 7. 42 U.S.C. § 1983 (sometimes referred to as section 1 of the Ku Klux Klan Act of 1871).

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