A Question of Equal Treatment: A Psychological Case for Abandoning the “Discriminatory Motive” Under Title VII

Erik J. Girvan, University of Minnesota - Twin Cities

Abstract

The legal policy goals of Title VII are clearly stated but disparate treatment doctrine, which is framed around a judicially created search for a “discriminatory motive,” is incoherent. Drawing on the insights from decades of social-psychological research on discrimination, we propose an alternative framework for the disparate treatment cause of action that rejects the “discriminatory motive” requirement in favor of a focus on the extent to which employers evidence a commitment to the goal of merit-based decision making. Using several examples, we illustrate how the proposed framework could be reliably used to resolve even complex disparate treatment cases. In terms of administrability and satisfaction of the policy goals underlying Title VII, the proposed framework improves on existing doctrine. Finally, the proposed framework embodies a novel approach for using empirical social science to inform the development of legal doctrine, one with the potential to open new doors for socially beneficial collaboration between the two disciplines.