This Article examines the extent to which employment discrimination litigation conducted under the current legal framework increases the biases of those involved in this process, particularly defendant-employers. It examines whether discrimination litigation enhances and exacerbates the negative views that these defendants may have toward not just the plaintiff who initiated the litigation, but also toward the broader protected class to which the plaintiff belongs.
Part I of this Article briefly expands upon the different types of bias that can infect employers' decisions, from the blatant discrimination that largely has disappeared from American society, to intentional discrimination that employers strategically hide from public view, to the unconscious biases that affect the decisions of employers and others without them even knowing it.
Part II develops this Article's central argument regarding the existence of litigation-induced group bias, presenting support for the idea that the litigation of discrimination claims exacerbates defendants' biases against the entire protected group to which the plaintiff belongs.
Part II of this Article analyzes the implications of this phenomenon of litigation induced group bias, exploring how (if at all) this should affect the legal framework under which courts analyze "retaliation claims" under Title VII.
Finally, Part IV explores some alternate approaches to addressing litigation induced group bias, asking whether there are other changes, short of doctrinal changes, that could be made in response to this problem.
Jessica K. Fink, Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants, 38 N.M. L. REV. 333 (2008).