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38 N.M. L. Rev. 333 (2008)
Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants

handle is hein.journals/nmlr38 and id is 341 raw text is: UNINTENDED CONSEQUENCES: HOW ANTIDISCRIMINATION LITIGATION INCREASES GROUP BIAS IN EMPLOYER-DEFENDANTS JESSICA FINK* INTRODUCTION Since the passage of Title VII of the Civil Rights Act of 1964,' countless individuals have turned to the courts to redress alleged violations of their civil rights. Indeed, in the four-plus decades since the passage of Title VII, discrimination claims brought under Title VII (along with its counterparts within the federal antidiscrimination statutory scheme)2 have consumed an increasing portion of the federal court docket.3 This increase suggests that in the eyes of many employees, the answer to workplace bias exists within the courtroom. Bias itself, however, has changed dramatically in the years since the passage of Title VII.4 As social norms in this country have evolved, examples of overt discrimination, where women and minorities received blatantly inferior treatment in educational opportunities, public transportation, employment, and other public goods, have become increasingly less common.' At the same time, however, more elusive strains of bias have emerged, particularly in the workplace. Some employers, for example, simply have become more skilled at hiding their discriminatory animus, finessing discriminatory decisions so that they appear to be untainted by bias.6 Other employers may find their workplace behavior unintentionally shaped by bias and stereotype-a phenomenon that commentators * Assistant Professor, California Western School of Law. I am grateful to my colleagues at California Western who provided me with valuable comments and suggestions at a work-in-progress session regarding this project. I owe a special thank you to Thomas Barton, Robert Bohrer, Barbara Cox, Ruben Garcia, and Michael Yu, each of whom reviewed earlier drafts of this work and offered insightful guidance and feedback. My thanks also go to Christine Jolls for her feedback in the initial stages of the project and to Orly Lobel and the students in the University of San Diego Law Work, Welfare and Justice Seminar who also provided me with constructive input. Thank you to Michael Favale and Andriy Shemchyshyn, the students who provided research assistance on this project. Finally, thanks and love to my husband Robert for his unwavering support. 1. 42 U.S.C. §§ 2000e to 2000e-17 (2000), amended by Civil Rights Act of 1991, 42 U.S.C. § 1981a (2000) (Title VII). Among other things, Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2 (2000). 2. See, e.g., Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (2000) (ADEA) (prohibiting age discrimination in employment); Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117 (2000) (ADA) (prohibiting disability discrimination in employment). 3. See Joshua M. Javits & Francis T. Coleman, High Court to Revisit Issue of Mandatory Arbitration, NAT'LL.J., Oct. 5, 1998, at B5 ([Clourts and government agencies are being overwhelmed by more than 200,000 employment discrimination filings each year, increasing at a rate of about 23 percent a year.); see also Vivian Berger, et al., Summary Judgment Benchmarks for Settling Employment Discrimination Lawsuits, 23 HoFSTRA LAB. & EMP. L.J. 45,45 (2005) (The number of employment discrimination lawsuits rose continuously throughout the last three decades of the twentieth century. In the federal courts, such filings grew 2000%, while the docket as a whole increased a mere 125%.) (citation omitted). 4. For purposes of this Article, bias generally can be defined as an inclination of temperament or outlook; esp: a highly personal and unreasoned distortion of judgment: PREJUDICE. MERRIAM-WEBSTER'S COLLEGIATE DICrIONARY 118 (11 th ed. 2003). 5. See Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56 ALA. L. REV, 741, 741 (2005); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REv. 458, 459-60 (2001) (Smoking guns-the sign on the door that 'Irish need not apply' or the rejection explained by the comment that 'this is no job for a woman'-are largely things of the past.). 6. See infra note 15 and accompanying text.

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