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Hastings Business Law Journal

Abstract

Current disparate treatment jurisprudence requires a plaintiff to prove that her employer intentionally discriminated based on sex, ignoring the social cognitive view that emphasizes the role of unconscious, unintentional mental processes. Women are unable to reach the top- tiers of the legal profession, like partnership, due to employers’ deeply engrained biases that emerge during assignment distribution and performance evaluations. This Note challenges that dominant approach, arguing that disparate treatment liability should turn on proof of actuation rather than evidence of intentionality. This Note presents a prescriptive discussion of how employers can implement compliance measures to prevent implicit bias in decision-making processes. This Note also discusses the judicial deference given only to upper-level employers, as opposed to lower-level employers, and argues that such deference may be, and should be, granted depending on the employer’s effective compliance measures. Remedial measures must simultaneously address individual, judicial, and theoretical levels in order to mitigate implicit biases towards women in the legal profession.

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