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131 6 Intent in Disparate Treatment Litigation Disparate Treatment: Defining Intent Masculinities theory observes that because masculinity and femininity are considered the norm, masculine structures, performances, and practices are so common that they are actually invisible to most observers. Concepts of masculinity are intertwined with the definition of work. In fact, men who engage in masculine practices and performances often define their behaviors as doing work (Martin 2001). In her study of gender practices in for-­ profit corporations, sociologist Patricia Yancey Martin dealt with only the behaviors of men who did not consciously harm their female colleagues. Nonetheless, the women who worked with the male colleagues suffered harm as a result of the men’s masculine practices (ibid.). This research raises serious issues regarding employment discrimination in the workplace against women and gender-­ nonconforming men. It also creates concern about how the plaintiff should define and prove intentional discrimination in a Title VII case. Disparate treatment cases require the plaintiff to prove that the employer or its agent intentionally discriminated against the plaintiff because of the plaintiff’s membership in a protected class. But what does intent mean in this context? What should it mean? And, can it incorporate the understandings of masculinity research? There is no question that an employer illegally discriminates against an employee or applicant if the employer takes an adverse employment action against the employee because the employer dislikes members of the protected class to which the employee or applicant belongs. For example, it is clear that a black man who owns a business illegally discriminates by refusing to hire Asian applicants because he does not like Asians. If the employer is open about these views and his reason for refusing to hire Asian applicants, the Asian plaintiffs will establish discriminatory intent in a Title VII action. This is the easy case. 132 | Intent in Disparate Treatment Litigation There are two reasons why establishing intent can be much more difficult . First, as we shall see below, research by social psychologists and other social scientists demonstrates a significant shift in the type of discrimination that occurs in this country. Unlike in earlier times, there is substantial societal disapproval of racism. While this disapprobation has lessened overt racism in the country, it has also caused racial attitudes to move from conscious or explicit bias to unconscious or implicit bias. These subtle manifestations create significant proof problems in disparate treatment cases. The question arises whether discriminatory intent under Title VII should prohibit adverse employment actions caused by the implicit or unconscious biases of the employer. Second, even where the employer experiences conscious or explicit bias toward particular groups, employers have become much more savvy about antidiscrimination law, and are often aware of and/or able to cover up the fact that employment decisions resulted from their own conscious biases. In this case, employers can hide their true motives, and the question of whether the adverse employment decision was motivated by discriminatory attitudes becomes an issue of proof. In either case—­ whether we recognize adverse employment actions resulting from unconscious bias as illegal discrimination, or whether an employer who harbors conscious bias hides his true reasons for the adverse employment action—­ determining the existence of discriminatory intent in a disparate treatment case is inextricably intertwined with the question of proof. Proving discrimination becomes even more complicated because the employer is often represented by a number of supervisors or other agents who are engaged in judging the employee’s work product. The courts have struggled with whose intent matters. In Staub v. Proctor Hospital, the Supreme Court held that in a case brought under the Uniform Services Employment and Reemployment Rights Act (USERRA), an antidiscrimination act designed to protect members of the armed services, even if the decision maker in an employee firing had no discriminatory intent, the employer may be liable if a supervisor, intending to discriminate on the basis of the plaintiff’s protected characteristic, recommended to the ultimate decision maker that the employee be fired, and the decision maker followed that recommendation (38 U.S.C. § 4311; Staub v. Proctor Hospital 2011). Intent in Disparate Treatment Litigation | 133 Scholars, judges, and practitioners have struggled with the concept of defining intent for purposes of disparate treatment. One possible interpretation is that intent means a purpose-­ to-­ harm the applicant or employee because of race, color, sex, national origin, or religion. A second plausible interpretation is that the intent requirement exists merely as a causation requirement. According to this view...


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