Fool Me Once, Shame on You; Fool Me Twice, Shame on You Again: How Disparate Treatment Doctrine Perpetuates Racial Hierarchy
74 Pages Posted: 15 May 2018 Last revised: 3 Nov 2018
Date Written: May 2, 2018
Title VII race discrimination doctrine is excessively hostile to workers of color, and many observers agree that it needs to be fixed. Yet comparatively few analyses of the doctrine weave together doctrinal and theoretical insights with systematic empirical findings from social science. This Article looks to Social Dominance Theory—a social psychology theory with a robust body of supporting empirical research—to take on this task and connect judicial interpretation to the human tendency to create and maintain group-based hierarchies. In doing so, the Article questions the common view that Title VII race discrimination doctrine is symmetrical, protecting all racial groups equally except for those instances, most notably affirmative action, that create limited preferences in favor of workers of color. Viewed through the proper lens, this view is not supported. Digging deeper into the doctrinal logic and armed with empirical research findings on human psychology when group hierarchy is at stake, this Article shows how Title VII disparate treatment doctrine should instead be viewed as fundamentally asymmetrical to the detriment of workers of color. As a result, it perpetuates the racial hierarchy that continues to pervade the American economy. Taking a hierarchy-centered view also helps us uncover negative consequences that may result from various law reform proposals that have been suggested to fix the disparate treatment mess. This Article provides initial suggestions for what reform grounded in one of Title VII’s main asserted purposes—to eliminate racial hierarchy in the workplace—could look like, from reevaluating previous doctrinal choices to more structural changes such as broadening the pipeline into the federal judiciary. If we are to move towards a more racially egalitarian society, we must be conscious of, and challenge, the human tendency to perpetuate group-based hierarchy and its problematic influence on the law.
Keywords: critical race theory, law and social psychology, race and the law, social dominance theory, antidiscrimination law
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