Diversity and Discrimination: A look at Complex Bias

Multiple claims have become a fixture of employment discrimination litigation. It is common, if not ubiquitous, for court opinions to begin with a version of the following litany: \u27Plaintiff brings this action under Title VII and the ADEA for race, age, and gender discrimination. Equal Employment Opportunity Commission (EEOC) statistics show exponential growth in multiple claims in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment may in fact be rooted in intersectional or complex bias: although stereotypes for women have somewhat dissipated, those for older African American women still hold sway. Complex bias provides a counternarrative to the currently in-vogue characterization of workplace discrimination as subtle or unconscious. Despite the common sense notion that the more different a worker is, the more likely she will encounter bias, empirical evidence shows that multiple claims-which may account for more than 50 percent of federal court discrimination actions-have even less chance of success than single claims. A sample of summary judgment decisions reveals that employers prevail on multiple claims at a rate of 96 percent, as compared to 73 percent on employment discrimination claims in general. Multiple claims suffer from the failure of courts and intersectional legal scholars to confront the difficulties inherent in proving discrimination using narrowly circumscribed pretext analysis. Applying sex-plus concepts does not address the underlying paradox inherent in the proof of these cases: the more complex the claimant\u27s identity, the wider must be cast the evidentiary net to find relevant comparative, statistical, and anecdotal evidence. Overcoming the courts\u27 reluctance to follow this direction requires the development and introduction of social science research that delineates the nuanced stereotypes faced by complex claimants