Leora F. Eisenstadt and Jeffrey R. Boles, Intent and Liability in Employment Discrimination, 53 American Business Law Journal 147 (2016). 

The Silicon Valley Ellen Pao trial brought to the forefront once again the changing nature of discrimination in the workplace with its focus on a culture of bias and the prevalence of unconscious discriminatory behavior. This case is only the most recent high-profile example. There is an emerging consensus among scholars that the concept of “intent” in disparate treatment employment discrimination should be broadened to encapsulate more flexible notions including implicit bias, negligent discrimination, and structural discrimination. These scholars argue convincingly that psychological research demonstrates that implicit bias and reliance on ingrained stereotypes is, to some extent, natural to human decision-making processes. As a result, bias in the workplace operates at both an overt, knowing level but also beneath the surface and, at times, without the conscious knowledge of the decision-makers themselves.

However, despite extensive discussion of implicit bias in the legal literature, few, if any, scholars have considered alterations to liability and compensation schemes as a result of the broader meanings of intent. This article proposes looking to criminal law as a practical and theoretical model for an amendment to Title VII that would include gradations of intent with concomitant gradations in liability. The Model Penal Code presents an orderly and well-thought-out approach to intent, or mens rea, and the gradations of intent that support a finding of guilt. In addition, theory and policy supporting criminal law’s linkage of intent and liability are remarkably analogous to Title VII’s goal of elimination of discrimination. As a result, this article contends that a careful and measured consideration of criminal law’s approach to liability is instructive.

Drawing on the extensive literature on flexible intent and criminal law theories of retributivism and consequentialism, this article proposes a statutory expansion of the definition of disparate treatment discrimination under Title VII with an adjustment in the liability regime based on the level of employer intent. We contend that a clear link between intent level and damages constitutes an attractive balancing of employer and employee needs that should spur this crucial statutory change. A statutory amendment to Title VII that both broadens the meaning of “intent” for disparate treatment claims but also limits liability based on the level of intent offers a compromise position that expands the application of discrimination law to meet changing workplace norms and a theoretically and emotionally satisfying means of accomplishing that change.