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Excerpted From: David Simson, Fool Me Once, Shame on You; Fool Me Twice, Shame on You Again: How Disparate Treatment Doctrine Perpetuates Racial Hierarchy, 56 Houston Law Review 1033 (Spring, 2019) (342 Footnotes) (Full Document)

DavidsimsonCalling social dominance by more palatable names, pretending that it is only a feature of other people's societies, assuming that it is due only to the actions of a “misguided” few, and presuming that it is merely a dying legacy of the past not only are exercises in self-delusion, but also contribute to the tenacity of group dominance by obfuscating its very existence, and thereby making it that much more difficult to change.

We judge it as considerably more harmful to the cause of equality and the fulfillment of democratic ideals to pay too little than too much attention to the dynamics of group dominance.

Imagine that you are a black employee who is vying for a promotion. You have worked hard trying to rise through the ranks. You have assiduously applied for more attractive jobs, but you have been out of luck for a promotion because those jobs were at other facilities, and the employer has a policy of filling vacancies from within the same facility where possible. But now, a position has opened up in your facility, and it needs to be filled quickly. You think it is finally your turn: you are the only person on the candidate list who is already working at the facility, and you are clearly qualified. If everything goes by the book, you have finally earned yourself a promotion. You are also the only black applicant for the job.

But you don't get the job. Instead, you learn, a white male got the job. What's more, the person who got the job was not on the initial candidate list. He was not even qualified, and thus not eligible, for the job based on the original job description. Yet, you learn that, after finding out that you would have gotten the job under existing procedures, the hiring manager ordered the job description to be rewritten. Magically, the other candidate is now the only person remaining on the new eligibility list and will be hired. You are frustrated, upset. You can't help but think that your race was the reason that you did not get the promotion. You know Title VII of the 1964 Civil Rights Act prohibits race discrimination in employment decisions. Surely, you think, if Title VII was written to protect anyone, it would be you. Fool me once: you are wrong. The district court judge agrees with you that you were more qualified. However, the court tells you that it was not your race that caused you not to get the promotion; it was that the manager engaged in favoritism for his “fishing buddy”--favoritism ostensibly unconnected from any racial motivation. That is a decision that the employer can legally make because favoritism unconnected to race is not illegal. So, you lose your case. You are confused. At trial, the manager had steadfastly denied any favoritism, so you think he should be held to his testimony under oath. But the district court didn't believe those denials and concluded that favoritism is the better explanation for what happened. You hope that the appeals court will correct what seems like a clear error. Your hope is misplaced. While the court tells you that it is troubled and might have reached a different conclusion on a clean slate, it also says that it is bound by what it sees as acceptable judgment calls by the district court in interpreting the evidence. “Title VII does not have a limitless remedial reach,” the court says, and you are not within its existing reach.

Now imagine that you are a black employee of an employer in financial distress, hoping not to get laid off. You are somewhat hopeful. You are the only black employee in an administrative position, and your employer has committed itself to racial equity, inclusion, and diversity through an affirmative action plan that aims to achieve and protect an equitable racial composition of its workforce. But the financial situation is bad. The employer must lay off numerous people in your job category. You are initially one of them, but like all of the laid-off employees, you get a hearing to contest your layoff. After further review, the employer decides that your layoff would improperly set back its goals of racial equality in the workforce and decides to retain you after all. A white employee, who was in some respects senior to you but was laid off, sues, claiming that the decision to retain you but not her was illegal race discrimination under Title VII. Surely, you think, it must be possible for an employer to voluntarily try to retain its only black administrative employee in an effort to have a more racially equitable workforce. Fool me twice: you are wrong again. The court decides that retaining you is not a decision that your employer can legally make under Title VII. The employer could only do so if it had discriminated against black employees in the past, and there was not enough evidence of that. For the court, because there are few blacks in the local labor force, it really wouldn't be significant for the employer to have no black employees at all. What's more, retaining you to protect the employer's affirmative action progress was illegal because it “unnecessarily trammel[ed]” the interests of the white employee, who the court viewed as the one who was really entitled to your position.

Imagining yourself as the worker in the first scenario above puts you into the shoes of one of the most common types of litigants in the American civil justice system. Employment discrimination cases are consistently among the most frequently litigated types of civil cases in the federal courts. By imagining your frustration about not receiving any relief, you also share in the feeling most commonly experienced by plaintiffs in these cases. Employment discrimination cases are notoriously difficult to win for plaintiffs. Employment discrimination plaintiffs fare more poorly than other civil plaintiffs in the district courts, and even if they succeed at the trial court level, they are extremely likely to have their victories overturned on appeal. This pattern appears to have been in place for decades now. Claims of race discrimination are perhaps the most frequently litigated type of employment discrimination case, and there are some indications that race discrimination plaintiffs fare particularly poorly in the courts. Racial minorities, in particular black plaintiffs, are the prototypical plaintiff in such cases. Black plaintiffs bring most employment discrimination cases claiming race discrimination. Thus, the apparent antiplaintiff bias of federal judges in employment discrimination cases disproportionately affects black plaintiffs, who lose most of their cases. This is so even though a wide variety of data shows that racial inequality and racial discrimination against workers of color continue to pervade the American economy. In the face of such continued discrimination, one might think that employment discrimination law should be equally, perhaps more, hospitable to claims by workers of color compared to other kinds of civil plaintiffs, not less. Yet, it is decidedly not.

The shape of employment discrimination doctrine under Title VII of the 1964 Civil Rights Act, the federal statute governing race discrimination in employment, significantly contributes to this lack of success by discrimination claimants. Scholars have criticized the doctrine as a complicated “morass” that is in significant part the outcome of restrictive judicial interpretation of broad statutory language (especially since the 1980s), notwithstanding intermittent legislative intervention meant to broaden workers' antidiscrimination protections. This restrictive interpretation has created a doctrine that in many of its specifics, including in the race discrimination context, discredits discrimination claims of plaintiffs, who are predominantly workers of color.

This is deeply troubling. After all, the Supreme Court has repeatedly reminded us that one of the main goals of Title VII was to create lasting improvements in the working conditions of racial minorities, in particular black Americans, and to ensure equal opportunities for minority workers to succeed in the workplace. In interpreting and applying Title VII race discrimination law, the federal judiciary (including the Supreme Court itself) has not delivered on these goals for decades now. The first vignette above, taken from a real case, is illustrative of the resulting “fool me once” problem for racial minority plaintiffs: despite being the primary intended beneficiaries of Title VII's prohibition of race discrimination, they have terrible chances of success even when they have strong evidence of such discrimination.

Given the crucial importance of employment to most people's livelihoods, especially for racial minorities who already disproportionately suffer from social and economic stratification, it is important to uncover the reasons underlying this longstanding disconnect between asserted statutory goals and interpretive practice so that effective countermeasures can be developed. Yet, comparatively few scholarly analyses, particularly outside of the implicit bias literature, have tried to do so by combining traditional doctrinal and theoretical analyses with systematic empirical insights from social science.

The first major goal of this Article is to offer an analytical framework that takes on this task in a novel way and explains the federal judiciary's cramped interpretation of Title VII race discrimination law based on conclusions from social psychology. This framework combines findings from Social Dominance Theory (SDT)--a social-psychological theory with a considerable footprint in social science journals but that has yet to significantly enter legal scholarship insights from Critical Race Theory (CRT) and conceptualizes the interpretation of race discrimination law as a mechanism through which racial hierarchy is regulated and, in the main, (re-)produced. SDT researchers have uncovered robust evidence that basic human psychological preferences for society to be organized as a group-based (including racial) hierarchy can influence different groups of people to think and behave in ways that help to create and maintain such hierarchy. This Article argues that there are good empirical reasons to think that federal judges as a group (with individual variation to be sure) have comparatively strong such preferences, and that they will act in accordance with those preferences when interpreting hierarchy-relevant laws such as Title VII's race discrimination provisions. These preferences influence, among other things, people's baseline assumptions and perceptions of the prevalence of discrimination against different groups, their views on the desirability of antidiscrimination intervention, as well as the ideologies people use to explain the world around them. This Article analyzes Title VII race discrimination doctrine with reference to these psychological processes and shows how they explain the doctrine's suspicion towards claims of discrimination by workers of color, its many rules that discredit their allegations, and why it rejects the vast majority of their claims as a result. Uncovering the interpretation of employment discrimination law as a process at least partially driven by the judiciary's preferences for group-based social hierarchy, in turn, has important implications for potential reform, including illustrating the likely benefits of increasing judicial diversity of various kinds.

The second major goal of this Article is to show that its analytical framework not only helps us better understand the ongoing judicial interpretation of employment discrimination law, but also illustrates that popular descriptions and conceptualizations of the overall logic of Title VII jurisprudence are inaccurate and potentially unhelpful. Taking a hierarchy-centered view of Title VII doctrine counsels against accepting what seems to be a relatively broad consensus that (1) Title VII in general, and its race discrimination provisions in particular, are “symmetrical” (i.e., they protect all groups covered by the law in the same general fashion and (2) to the extent that the doctrine is asymmetrical (i.e., provides certain protections to some but not other groups), it is asymmetrical in favor of racial minorities because it allows for affirmative action. This Article argues that, instead, Title VII race discrimination jurisprudence, its affirmative action doctrine included, should be understood as being fundamentally asymmetrical to the disadvantage of workers of color while protecting the interests of white workers to a greater extent.

This is because, consistent with what this Article's analytical framework predicts, the federal judiciary has interpreted Title VII in ways that make it comparatively easy to prevail for litigants whose interest is to preserve existing racial hierarchy in the workplace (most employers and white workers) and comparatively difficult for litigants whose interest is to reduce existing hierarchy (employers who pursue affirmative action and workers of color). As a result, Title VII race discrimination law is neither always hostile to plaintiffs nor always friendly to employers. Rather, it is hostile to plaintiffs in “traditional” race discrimination cases like the first vignette above, which prototypically challenge racial hierarchy because they are predominantly brought by workers of color. By contrast, it provides greater comparative protection to plaintiffs in affirmative action cases (prototypically white workers) in which plaintiffs aim to prevent interference with existing hierarchy, as shown in the second vignette above. Similarly, employers are treated deferentially when defending “traditional” cases, but with greater hostility when defending affirmative action programs. One common source for all of these asymmetries is a “baseline error”--an often unspoken assumption, counter to the weight of the evidence but consistent with Social Dominance Theory, that discrimination against workers of color is not sufficiently frequent to warrant particular attention, and that discrimination against white workers warrants just as much (if not more) judicial concern. In all cases, however, workers of color receive the short end of the stick because the doctrine consistently undervalues their interests. Thus, such workers disproportionately miss out on employment opportunities, and racial hierarchy in the workplace persists.

Given the Supreme Court's repeated command that one of the main purposes of Title VII is the elimination of racial hierarchy in the workplace, and the fact that Title VII grew out of the Civil Rights Movement's efforts to end the subordination of workers of color, this is highly problematic. Research findings from SDT and the framework proposed in this Article help us explain why we should nevertheless not be surprised to see the existing doctrinal landscape. They also help us better evaluate potential unintended negative consequences of reform proposals that proceed from a view of Title VII doctrine as symmetrical or, if anything, asymmetrical in favor of workers of color.

Overall, then, there are several gaps between Supreme Court rhetoric about what Title VII is meant to achieve and the actual interpretive practice of both the Supreme Court itself and the lower courts. These gaps manifest themselves in doctrinal asymmetries that consistently under-protect the employment opportunities of workers of color and can be uncovered by a close interrogation of doctrinal rules that apply to different types of cases. It is important to uncover these asymmetries and their social psychological origins so that we can begin to develop countermeasures that help us move closer to the stated goals of federal employment race discrimination law. This Article speaks to all of these steps.

Part II provides an overview of this Article's main analytical framework. It begins in Section II.A with an overview of Social Dominance Theory and lays out SDT's claim that human societies develop as, and predictably remain, group-based social hierarchies. These hierarchies are aided in their stability by a complex interplay between individual psychology, individual and institutional behavior, and social and cultural ideologies. The law can be understood to play a critical role in this process. I propose two analytical heuristics that place the interpretation of antidiscrimination law by the courts into the SDT framework. I call these heuristics asymmetrical narrowing and proof asymmetry. I also discuss important contributions that SDT can make to a more comprehensive understanding of employment discrimination law. Section II.B gives a brief overview of the concepts of “framework critique” and “baseline error” that scholars in Critical Race Theory have developed, and which integrate productively with SDT.

Part III applies the framework of Part II in analyzing Title VII doctrine and uncovering its racial asymmetries. In particular, I focus on disparate treatment doctrine regulating race discrimination claims. I first analyze the doctrine that applies to the claims prototypically brought by racial minorities as plaintiffs, i.e., cases like the first vignette above. In particular, I focus on the burden-shifting regime established by McDonnell Douglas Corp. v. Green and, using the framework from Part II, show how its current doctrinal logic is fundamentally asymmetrical to the detriment of workers of color. I then compare such “traditional” disparate treatment cases to Title VII affirmative action doctrine, i.e., the doctrine that applies to cases like the second vignette above. This doctrine is based on a modification of the McDonnell Douglas scheme, but an analysis of its rules shows how Title VII operates much more favorably to plaintiffs when they are prototypically white claimants challenging interference with existing hierarchy. Both areas combine to preserve existing racial hierarchy in the American workplace. The framework developed in Part II provides a powerful aid in explaining why this is so.

Finally, Part IV begins a conversation about the implications of my analysis for potential solutions to the problematic state of employment discrimination law. I discuss some of the proposals for doctrinal reform that scholars have already offered and argue that they risk unintended consequences that may further solidify aspects of existing racial hierarchy. Their implementation could also undermine support, and a coherent ideological basis, for more effective remedies--most prominently broader affirmative action programs. Accordingly, Part IV takes a first cut at offering some alternative suggestions for reform. Some could be implemented more short term, such as modifying previous doctrinal choices. Others recognize that any lasting progress towards reducing the negative effects of racial hierarchy, and the law's complicity in it, will have to include more structural changes. Such changes could include, most prominently, broadening the pipeline into the federal judiciary in a hierarchy-conscious manner.

[. . .]

This Article has looked to Social Dominance Theory--a prominent theory in social psychology with a robust body of supporting empirical research--to question the 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. Digging deeper into the doctrinal logic, armed with research findings on how judges are likely to act in hierarchy-relevant cases, this Article shows how current Title VII disparate treatment doctrine is fundamentally asymmetrical to the detriment of workers of color and maintains the racial hierarchy that continues to pervade the American economy. Taking a hierarchy-centered view helps us uncover unintended negative consequences that may result from various law reform proposals that have been suggested to address the harsh nature of current law. This Article has provided 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. There is much more to be said and analyzed in this context. But 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 at every step along the way. 

Bernard A. and Lenore S. Greenberg Law Review Fellow, UCLA School of Law.