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Abstract

Since its enactment as part of the Civil Rights Act of 1964, Title VII’s main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely successful in reducing and remedying instances of overt discrimination in the workplace. However, more recently, social scientists have analyzed and applied the results of Harvard’s Implicit Association Test to recognize a new form of discrimination characterized by a subconscious decisionmaking process based on intuition and a lack of an overt intent to discriminate. This phenomenon is called “implicit bias.”

To date, several courts have been receptive to incorporating an implicit bias–based theory of employment discrimination, seeing this as the next step in the battle to end all forms of discrimination. Yet many other courts have remained skeptical of the impact of implicit bias and have refused to find that discrimination existed without a showing of intent, specific actions by an employer, or specific employment practices. This Note examines the struggle courts face when analyzing potential instances of implicit bias, and suggests how implicit bias–based claims can be consistent with the existing Title VII intent–based framework and evaluated with minimal changes to that framework.

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