Thursday, January 11, 2018
Catherine Ross Duhnam, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace, 51 Akron Law Rev. 55 (2017)
This Article will begin by examining the [Ellen] Pao [Silicon Valley] and [Betty] Dukes [Wal-Mart] cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The Article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the Article will explore generally the evolution of second generation discrimination as a legal theory, connecting that analysis back to Dukes’ and Pao’s cases. The Article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The Article will argue that gender based implicit bias against female litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that their employer allowed bias against them to curb their opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.