Discriminatory hiring decisions are less likely to be challenged than discrimination that arises in other contexts, such as termination. Applicants who are rejected are likely to have little information about the other applicants they are competing against. In addition, there are myriad reasons why someone might not be hired, so an applicant rejected because of racial stereotypes is unlikely to be aware that that was the reason for his rejection. By contrast, applicants who are excluded because of a criminal record policy are likely to know the reason for their exclusion.
Moreover, because discriminatory decisionmaking can operate at a subconscious level, reviewers engaging in racial stereotyping may not themselves even be aware that they are doing so.
Decisions addressing subconscious discrimination are rare, but the Supreme Court has indicated that subconscious discrimination does not constitute intentional discrimination. As Justice Brennan explained in his plurality opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in the context of sex discrimination:
In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.Similarly, in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), Justice O'Connor, writing for the Court, explained that employment decisions based on subconscious racial stereotyping do not constitute intentional discrimination:
[I]t may be customary and quite reasonable simply to delegate employment decisions to those employees who are most familiar with the jobs to be filled and with the candidates for those jobs. It does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. Furthermore, even if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain. In this case, for example, petitioner was apparently told at one point that the teller position was a big responsibility with "a lot of money ... for blacks to have to count." Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. If an employer's undisciplined system of subjective decisionmaking has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not apply.As illustrated in Watson, because subjective decisionmaking that is infected by subconscious racial stereotypes does not constitute intentional discrimination, it should be actionable if it results in a race-based disparate impact.
The principal legal authority endorsing coverage of subconscious discrimination as disparate treatment is probably the First Circuit's decision in Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999). The Thomas court held that "'disparate treatment because of race' extends both to employer acts based on conscious racial animus and to employer decisions that are based on stereotyped thinking or other forms of less conscious bias." In reaching this conclusion, the court explained: "The ultimate question is whether the employee has been treated disparately 'because of race.' This is so regardless of whether the employer consciously intended to base the evaluations on race, or simply did so because of unthinking stereotypes or bias."
As illustrated, it is not clear that individual instances of unconscious race-based decisionmaking are covered under Title VII's disparate treatment framework, and they instead may only be redressible if the product of a systemic policy involving subjective decisionmaking. But even assuming individual instances of race-based stereotyping are covered as disparate treatment, it seems unlikely that most victims will even be aware that they were rejected for an unlawful reason.
In raising these issues I don't mean to suggest that banning the box is a bad idea, only that, as with a lot of policy decisions, it can have potential downsides and the answer may not be so clear-cut.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.