The Juxtaposition Turn: Watson v. Fort Worth Bank & Trust
20 Pages Posted: 22 Jun 2020
Date Written: May 9, 2020
Employment discrimination scholars, attorneys, and judges today tend to describe the concepts of disparate treatment and disparate impact as wholly distinct, even diametrically opposed. What’s more, they portray systemic disparate treatment theory as narrowly constrained, stating, for example, that “intentional discrimination” proven by systemic disparate treatment theory requires evidence of a particular state of mind on the part of leaders of a company, or that “implicit bias” exercised by low-level decision makers within a company cannot amount to disparate treatment by the entity for which those decision makers are acting. In this Essay, I seek to expose a key turn in employment discrimination jurisprudence that may have led us astray. To do so, I take a deep dive into a case that most people think of as plaintiff friendly and relatively simple: Watson v. Fort Worth Bank & Trust, decided by the Supreme Court in 1988. Watson is well known for its holding that an employer’s subjective decision-making practice can be challenged using disparate impact theory. What commentators have missed is that Watson represents a turning point for employment discrimination law from understanding systemic theories of discrimination as softly bounded and interwoven to understanding those theories as sharply constrained and juxtaposed. Surfacing history and drawing extensively on briefs and opinions in the case, I show that the problem with Watson lies not in what the Court held or said about disparate impact, but in what it said (and did not say) about systemic disparate treatment. The Supreme Court in Watson juxtaposed disparate impact against disparate treatment in two ways: first, it expressly described disparate treatment so as to considerably narrow the scope of systemic disparate treatment theory; and, second, it failed to interrogate why the plaintiff in the case had turned to disparate impact in the first place, thereby leaving the impression that systemic disparate treatment was not an appropriate tool for the plaintiff in a case like Watson. In doing so, the Supreme Court set the stage for mistaken assumptions and ultimately for the erosion of civil rights afforded by the Court’s earlier seminal systemic disparate treatment decisions, International Brotherhood of Teamsters v. Unites States and Hazelwood School District v. United States.
Keywords: employment discrimination, implicit bias
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