The wise sages at the Workplace Professors Blog, (link to the site here), have posted an excerpt from an article-in progess by Franita Tolson (law clerk to Seventh Circuit Judge Ann Claire Williams).
The theoy of the paper rests on how the courts’ involvement is needed to remedy unconscious discrimination. The article, The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, is availale on SSSN as an abstract. Here’s an excerpt from the abstract:
Unconscious discrimination is actionable under Title VII …, but scholars [agree] that court regulation of it has failed. Contrary to the alternatives suggested in the literature, placing the burden on the firm to regulate discrimination ex ante is more likely to minimize unconscious, discriminatory behavior, at least more so than tinkering with the ex post remedies available for those few violations that can be proven through Title VII. [T]his article proposes alternative mechanisms for addressing unconscious discrimination that account for its peculiar nature, mainly firm-based remedies that will be more successful than the courts have been in addressing this problem. The difficulty comes in incentivizing the Delaware courts [can incentive] … firms to address unconscious discrimination … [via] the duties of care and loyalty, corporate norms, and economic pressure from corporate giants like Wal-Mart.
Hat tip to the Workplace Profs Blog