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40 Harv. C.R.-C.L. L. Rev. 481 (2005)
Unconscious Bias Theory in Employment Discrimination Litigation

handle is hein.journals/hcrcl40 and id is 487 raw text is: Unconscious Bias Theory in Employment Discrimination Litigation Audrey J. Lee* Deborah, an African American woman, worked as an adminis- trative assistant for her employer for several years. She consis- tently received positive performance reviews until she came under the supervision of a new administrative director, Joan, who is white. One of only a handful of minority employees, Deborah be- came subjected to increased scrutiny by Joan, who singled her out by requiring her to document her use of time at work. Relations were strained between the two, culminating in Deborah's termi- nation for failure to meet with Joan to discuss her job responsi- bilities. Joan's stated reason for terminating Deborah appears pretextual given that Deborah agreed to meet with her; because Deborah felt harassed, she had requested the presence of a sup- portive direct supervisor, a move recommended by the employee manual. Deborah has filed a Title VII race discrimination com- plaint against her employer in federal district court. Complaints of race discrimination against the employer have also been filed by at least two other minority employees. Alejandro, a Hispanic man, worked for several years at a large retail store in a sales position. He was highly regarded by his su- pervisors and had received an award for his sales performance. Alejandro repeatedly expressed interest in a management position, but each of the three times an opening emerged, a white candidate with less relevant experience was selected. Shortly after the last management selection, Alejandro was terminated for alleged fraud for failing to deduct sales credit that had accrued toward his com- mission earnings for a series of returns. He claims the omissions were inadvertent due to mechanical errors with the register, but the store did not credit his explanation or consider his years of exemplary performance. Based on initial discovery in the Title VII race discrimination suit he has filed in federal district court, * J.D., Harvard Law School, 2005; A.B., Harvard University, 1999. Several people pro- vided insightful feedback at various stages of my research. I am grateful to Professor Christine Jolls who introduced me to this area of law and provided early research opportu- nities which piqued my interest in these issues. Steve Churchill skillfully guided my clini- cal work, allowing me to pursue cases of this nature. Professor Elizabeth Bartholet encour- aged me to pursue this particular topic. The staff of the Harvard Civil Rights-Civil Liber- ties Law Review provided thoughtful editorial guidance.

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