Taking into account recent psychological research related to implicit bias and discrimination, this article will address proof of intent in disparate treatment cases. Part II of the article will examine a likely source of proof of discrimination - comments made by agents of the defendant. Courts frequently discount such comments, labeling them as "stray remarks" and either excluding them as evidence or determining that they are insufficient to defeat a motion for summary judgment. Derogatory comments directed at an individual, based on certain characteristics the speaker attributes to the individual, provide substantial insight into how the speaker assesses people. For this reason, such comments - even standing alone - provide direct evidence of purposeful or intentional discrimination and may be the only available evidence. It has also acknowledged a number of different methods of proving intentional discrimination. Part III explores recent psychological research and theories, which question both the laws intended to address discrimination and the courts' interpretations of them, as well as the proof schemes. Assuming plaintiffs alleging a violation of the Equal Protection Clause or an antidiscrimination statute must show intentional discrimination, Part IV discusses the implication of the psychological research in proving such discrimination, suggesting the existing proof schemes should be modified or adjusted, with more emphasis on the direct method and the mixed-motive defense.

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.