On Wednesday, March 2, 2016, and March 4, 2016, The Harman Firm, LLP published the first two parts of its three-part article titled Microaggressions. The third part, which follows below, discusses microaggressions in the context of employment discrimination litigation.
Passed in 1964, Title VII prohibits employers from discriminating against their employees on the basis of gender and race, among other protected characteristics. Under Title VII, prohibited discrimination includes subjecting an employee to a hostile work environment and unlawful employment practices. Unsurprisingly, examples of all three forms of microaggressions (microinsults, microinvalidations, and microassaults) are reported in a variety of judicial opinions brought under Title VII. However, Title VII does not prohibit conduct that is “merely” offensive, meaning that not all microassaults are actionable (and most microinsults and microinvalidations are not either, despite their impacts on their targets). Indeed, the Supreme Court held that “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not sufficiently affect the conditions of employment to implicate Title VII.
According to a study conducted by the American Psychological Association of U.S. District Court opinions from bench trials between 2000 and 2008, there is “a disconnect between the experiences of targets of discrimination and the legal system in which recourse is sought.” In other words, the courts are not taking notice of behaviors and conducts that plaintiffs clearly believe are discriminatory. “Only behaviors that were clearly intended to cause harm” to women or racial minorities are consistently correlated with favorable decisions for plaintiffs. The “disconnect” can be explained by the current regulatory regime, which requires that a plaintiff prove that his or her employer intentionally discriminated to succeed on a disparate treatment claim. In bench trial, a judge has sole discretion whether a plaintiff’s evidence indicates an intention to discriminate. Thus, it is unsurprising that judges give greater weight to microassaults – the only microaggression that is a purposeful action – then microinsults and microinvalidations, which although perceived as hurtful, are not necessarily intentional. Hence, judges do not often credit conduct that the target perceives as harmful discrimination as an evidence of discrimination. Additionally, judges, who tend to be white and male, may have greater difficulty understanding why some microaggressions evidence a discriminating motive or could harm their target.
Judges have the power to realign the law with the spirit of Title VII which is to prohibit discrimination in all forms. Judge Bennett of the Northern District of Iowa stated, “Through greater appreciation of the problem by the legal profession and creative problem solving, I am optimistic that the ray of hope will outshine the darkness of implicit bias.” Thus, if the 2011 survey and the cases above seem to indicate a “disconnect” between law and sciences, judges have the power to make connections, and there are, according to Dan Defore, lawyer and consultant at Adlitem Solutions, “robust opportunities for realignment between law and science.” The justice system is a “dynamic system” in which the nature of what is considered a discrimination is continually being redefined and judges have significant discretion in determining what constitutes discrimination.