Dave Hall (University of Tennessee College of Law) & Bradley A. Areheart (University of Tennessee College of Law) has posted The Bias Presumption (The Georgetown Law Journal, Vol. 112: 749) on SSRN. Here is the abstract:
The American workplace is a fractured sphere of public life in which white men often wield power at the expense of women and people of color. Yet discrimination today often operates less through explicit animus than through structural and implicit forces that remain invisible to employers and employees alike. As a result, discrimination is not merely the product of a few bad actors but a broader institutional problem. This Article argues that the workplace is one such institution, that it can serve as a positive agent of change, and that the law is an appropriate vehicle for fostering that change.
One of the law’s primary tools for addressing workplace discrimination is Title VII of the Civil Rights Act of 1964. In practice, however, Title VII has been largely unsuccessful in securing workplace equality. Two problems stand out. First, the current burden-of-proof framework often requires employees to produce “smoking gun” evidence that is difficult or impossible to obtain. Second, psychological and social forces can enable discriminatory practices while simultaneously making discrimination difficult for courts to recognize.
This Article argues that Title VII’s shortcomings stem in part from its narrow scope. The law focuses on individual actors and discrete moments in time while operating from a presumption of nondiscrimination. Yet a substantial body of research shows that discriminatory tendencies are widespread and often implicit. We argue that Congress should amend Title VII to shift the burdens of proof and persuasion away from employees in suspect classes who experience adverse outcomes and onto employers. Under this approach, a plaintiff’s prima facie showing would create a rebuttable presumption of discrimination, requiring employers to demonstrate that discrimination did not occur. By reversing the traditional framework, the law would better account for structural and implicit bias and encourage employers to take more proactive steps to combat discrimination.