Social Science in Law: A Psychological Case for Abandoning the 'Discriminatory Motive' under Title VII

45 Pages Posted: 23 Jun 2013

See all articles by Erik James Girvan

Erik James Girvan

University of Oregon School of Law

Grace M. Deason

University of Wisconsin - La Crosse

Date Written: May 1, 2013

Abstract

The legal policy goals of Title VII are clearly stated, but disparate treatment doctrine, which is framed around a judicially created search for a “discriminatory motive,” is incoherent. Drawing on the insights from decades of social-psychological research on discrimination, we propose an alternative framework for the disparate treatment cause of action that rejects the “discriminatory motive” requirement in favor of a focus on the extent to which employers evidence a commitment to the goal of merit-based decision-making. Using several examples, we illustrate how the proposed framework could be reliably used to resolve even complex disparate treatment cases. In terms of administrability and satisfaction of the policy goals underlying Title VII, the proposed framework improves on existing doctrine. Finally, the proposed framework embodies a novel approach for using empirical social science to inform the development of legal doctrine, one with the potential to open new doors for socially beneficial collaboration between the two academic fields.

Keywords: Disparate treatment, employment discrimination, psychology and law, social science and law

JEL Classification: K10, K19, K31

Suggested Citation

Girvan, Erik James and Deason, Grace M., Social Science in Law: A Psychological Case for Abandoning the 'Discriminatory Motive' under Title VII (May 1, 2013). Cleveland State Law Review, Vol. 60, 1057 (2013), Available at SSRN: https://ssrn.com/abstract=2283244

Erik James Girvan (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541 346-8934 (Phone)

HOME PAGE: http://law.uoregon.edu/faculty/girvan/

Grace M. Deason

University of Wisconsin - La Crosse ( email )

1725 State Street
La Crosse, WI 54601
United States

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