In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts have refused to consider evidence of biased statements by government officials in cases alleging, for example, that facially neutral laws were enacted for the express purpose of singling out Muslims. Courts outright ignore explicit bias when they consider intentional discrimination to be justified by goals such as law enforcement. And courts have developed a “stray remarks doctrine” in employment discrimination cases to prevent juries from hearing evidence of explicit bias. This Article identifies and criticizes legal arguments against consideration of explicit bias, including concerns about the feasibility of inquiries into intent, worry about undermining otherwise legitimate policies, the desire to avoid chilling effects on free speech, and the fear that confronting explicit bias will result in backlash. It argues that discrimination law should dispense with doctrines that shield explicit bias from consideration.
Jessica A. Clarke,
Nw. U. L. Rev.