Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants
40 Pages Posted: 25 Oct 2009
Date Written: Spring 2008
In recent years, employees have turned with increasing frequency to the courts to redress alleged violations of their civil rights in the workplace, often bringing suits under laws such as Title VII of the Civil Rights Act of 1964. Indeed, employment discrimination claims consistently consume a substantial (and rising) portion of the federal court docket. In the four-plus decades since the passage of Title VII, however, the nature of workplace bias itself has changed, becoming more difficult to detect in many cases. Some employers, often with the help of counsel, have learned to finesse their workplace actions to avoid the appearance of bias. Other employers may not even realize the extent to which bias and stereotype unconsciously affect their behavior.
This Article looks at one aspect of the intersection between this heightened litigiousness among employees and this evolution in the nature of bias, questioning whether there is some relationship between these two phenomena. Specifically, this Article argues that the proliferation in discrimination litigation might be exacerbating the biases that employers have toward members of a protected class. It asserts that employers frequently leave the antagonistic, emotional, and expensive process of discrimination litigation not only having increased negative views of the plaintiff who initiated the litigation, but also having an enhanced bias against other employees who happen to share the plaintiff’s protected characteristic(s). This Article examines evidence that this “litigation-induced group bias” exists, and discusses potential doctrinal and practice-oriented solutions to this problem, including the role that creative problem-solving, therapeutic jurisprudence, and alternative dispute resolution might play in avoiding this unfortunate and unintended side-effect of discrimination litigation.
Keywords: discrimination, employment, Title VII, implicit bias, litigation induced group bias, creative problem solving, therapeutic jurisprudence, ADR
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