Stephanie Bornstein

Reckless Discrimination

If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination—a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.

In doing so, the Article seeks to revive the importance of social science research on bias—research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII.