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Abstract

Today, litigation over plainly discriminatory employment practices is much less common than it was in the two decades following Title VII’s enactment as employers have largely reformed practices that most obviously violate employment discrimination law. But many less obvious employment practices, particularly those embedded in implicit bias or unconscious sex stereotyping, remain. One example is employers’ distribution of managerial decision-making power and authority based on assumptions about sex. Although this particular employment practice has not yet been litigated, there is a strong argument that a legal challenge to this practice could succeed. This Note argues that female managers can and should seek legal redress under Title VII when they are given less decisional authority under conditions that can only be explained by some implicit bias or sex stereotyping. Both disparate treatment theory and disparate impact theory provide viable paths for a litigant to pursue. Upon weighing the incentives and drawbacks under each theory, this Note concludes that disparate treatment theory offers the most promising and beneficial remedial pathway for potential litigants.

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