Tuesday, November 25, 2014
Richard Ford (Stanford) has just posted on SSRN his article (forthcoming Stanford L. Rev. 2014) Bias in the Air: Rethinking Employment Discrimination Law. Here's the abstract:
Employment discrimination jurisprudence assumes that key concepts such as “discrimination,” “intent,” “causation,” and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise definition. Drawing on familiar developments in private law, such as the legal realist critique of objective causation in torts, I argue that, in practice, the central concepts in antidiscrimination law do not describe objective phenomena or facts at all; instead, they refer to social conflicts between employer prerogatives and egalitarian goals. Ironically, at its best, employment discrimination law does not really prohibit discrimination; instead it imposes a duty of care on employers to avoid decisions that undermine social equality. This suggests that attempts to improve employment discrimination law by making it more attentive to “the facts” — for instance, refining causation in mixed-motives cases using quantitative empirical methods or defining discriminatory intent according to innovations in social psychology—are unlikely to be successful, because these facts are not really at the center of the dispute. Instead, we could better improve employment discrimination law — making it more successful as an egalitarian intervention and less intrusive on legitimate employer prerogatives — if we abandoned attempts to precisely define concepts such as “objective causation” and “discriminatory intent” and instead focused on refining the employer’s duty of care to avoid antiegalitarian employment decisions.