Stephen M. Rich · November 2011
80 GEO. WASH. L. REV. 1 (2011)
Contemporary psychology defines prejudice broadly, rejecting traditional views that equate prejudice with hostility and emphasizing the role of unconscious mental processes. A growing number of legal scholars have seized upon this new cognitive account of prejudice as a basis to expand the enforcement of antidiscrimination law’s prohibition against status-based disparate treatment. This Article challenges that dominant approach, arguing that rather than expanding legal protections against discrimination, it instead exploits the intuitive appeal of theories that define discrimination by the defendant’s invidious intent and overlooks the fact that disparate treatment liability turns on proof of status causation and not necessarily on evidence of motive. This Article presents a normative discussion of the ways in which disparate treatment doctrine is intended to balance equality commitments against a commitment to preserve the legitimate exercise of employer discretion and argues that the cognitive account of prejudice threatens to narrow rather than expand the law’s protections. This Article also discusses status-based voluntary compliance measures motivated by the employer’s self-interest, or “discrimination as compliance,” and argues that such measures may be, and should be, addressed under disparate treatment doctrine and cannot adequately be addressed by relying on the cognitive account of prejudice.
