About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most