The Limits of Title VII as a Rights-Claiming System
Discrimination law and societal changes have eradicated many of the more blatant manifestations of prejudice. The discrimination against women and people of color that remains tends to involve more subtle forms of bias. Title VII of the Civil Rights Act of 1964 promises to root out hidden and sophisticated discriminatory practices as well as overt and explicit ones. But as bias becomes more subtle, it becomes more difficult to detect. Social psychologists call this predicament “attributional ambiguity”—the difficulty that arises in sorting through “uncertainty about whether the outcomes you receive are indicators of something about you as an individual, or indicators of social prejudices that other people have against you.” The effectiveness of Title VII in addressing subtle forms of bias depends on the ability of people to recognize it when it occurs and their willingness to challenge it.
The dominant narrative in popular culture assumes that women and people of color respond to attributional ambiguity with hyper-vigilance—that is, they tend to see bias when it is not really there. It is not uncommon to hear references disparaging women who blame sexism for their troubles as “Feminazis” or African Americans for “playing the race card,” as if an attribution to race is always a cynical strategy and never an insight.
Although certainly the over-perception of bias does occur, social psychologists have concluded that the weight of evidence suggests that women and people of color are more likely to under-perceive discrimination that affects them. This occurs for a number of reasons, including: a general desire to believe that the world is a just place and that individuals have control over their destiny; an aversion to being seen as a victim; a tendency to compare one’s own situation to that of persons like oneself (for example, a woman is likely to compare her situation at work to that of other women); the difficulty perceiving individual instances of bias without access to data on how others are treated; and the well-understood fact that people are not well-liked by others when they blame discrimination for the negative outcomes they experience. Taken together, these processes explain social psychology findings that show most women will acknowledge that women as a group experience discrimination, but will deny that they personally have experienced it. Such findings also show that many women who have objectively experienced discrimination nevertheless deny that they have been discriminated against.
Current Title VII law is blind to the difficulties employees face in perceiving discrimination. The statute has an unusually short filing period, typically 180 days, with an extension to 300 days if you file in a state with a state fair employment agency. The short filing period is exacerbated by the Supreme Court’s 2002 decision in National Railroad Passenger Corporation v. Morgan, rejecting a continuing violations theory for “discrete” acts of discrimination such as hiring, firing, promotion, demotion and transfer decisions. The Eleventh Circuit recently interpreted Morgan to bar a challenge to ongoing pay discrimination when the initial decision to pay a woman less because of her sex is more than 180 days old. The Supreme Court granted certiorari in this case to decide if pay claims fall under the Morgan rule. I coauthored an amicus curiae brief in this case on behalf of 24 women’s rights organizations, arguing that the lower court’s rule places too strict a burden on employees to immediately recognize and challenge pay discrimination, and would effectively gut the statute’s application to pay claims.
A larger problem is the Court’s failure to grapple with the complexities of perceiving bias. Title VII doctrine presumes that an employee’s knowledge of discrimination is fixed and immediate. Remarkably, the Court has been content to leave the existence of a discovery rule in Title VII cases an open question, an indication that it views knowledge of discrimination as unproblematic and sees justifiable delays in perceiving discrimination as, at most, exceptional. Even the few lower courts that have explicitly decided to apply a discovery rule to Title VII claims have failed to grapple with the complexities of knowledge in this area, starting the filing period running at the moment when the plaintiff first learns of an adverse job decision (or in the case of pay, that a male comparator earns more). However, abundant evidence suggests that women do not infer discrimination simply by learning that a male comparator earns more or receives better treatment. For example, it often takes access to company-wide data broken down by gender in order for a woman to perceive gender bias in her own paycheck—the kind of information that is generally unavailable except through discovery after an employee has filed a claim. Thus, even those courts that apply a discovery rule take too simplistic a view of the process of perception, assuming that knowledge of bias is easily inferable from isolated information and ignoring the complex psychological processes that tend to thwart perceptions of bias.
As a system that relies on individuals to recognize violations and promptly file claims, Title VII also fails to come to terms with the number one reason why people do not report discrimination when they do perceive it: the fear of retaliation. Although Title VII officially bars retaliation in response to challenging discrimination, in actuality the law does not go nearly far enough in extending full and meaningful protection. Social science studies have documented what most people well understand: People do not like persons who complain of discrimination. This dislike of complainers, or “troublemakers,” occurs even when it is clear to observers that, in fact, the person complaining of discrimination actually has experienced it. The social dislike of persons who claim discrimination translates into a high risk of retaliation.
Although the Supreme Court has issued strong rhetoric disapproving of retaliation, most recently in this past summer’s decision in Burlington Northern & Santa Fe Railway Company v. White, the actual scope of protection falls far short. One of the most problematic doctrines in retaliation law today is the reasonable belief doctrine, which requires that opposition to discrimination be founded on a “reasonable belief” that discrimination actually has occurred. I have criticized this doctrine more extensively in a 2005 law review article, “Retaliation,” in the Minnesota Law Review. A Fourth Circuit case decided since then highlights the problem. In this case, Jordan v. Alternative Resource Company, the court ruled that an African American employee who was fired for complaining of an overtly racist remark by a co-worker had no recourse under the statute because it was not reasonable for him to believe that one blatantly racist remark created a legally recognizable hostile environment under Title VII. Increasingly, lower courts are applying this doctrine to leave employees with no protection from retaliation if their understanding of discrimination does not match that of the courts.
Of course, no legal regime that relies on individual claimants to come forward and assert their rights can ensure that all meritorious claims are heard without compromising important interests of defendants, such as the interest in repose and in avoiding stale evidence—the reasons we have statutes of limitation in the first place. But Title VII could adequately protect these interests while doing a better job of coming to terms with the reality that people often do not quickly perceive and challenge bias when it occurs.
Toward this end, Congress should lengthen Title VII’s statute of limitations to two years, and courts should explicitly adopt a discovery rule, with greater attention to the point in time when people actually tend to perceive discrimination. In addition, lower courts should make good on the Supreme Court’s recent anti-retaliation rhetoric by applying the reasonable belief doctrine with greater allowance for variation in what might reasonably be seen as discrimination. These changes would help enable Title VII to meet its promise of eradicating even subtle forms of bias in the workplace.