Abstract

Today, litigation over plainly discriminatory employment practices is
much less common than it was in the two decades following Title VII’s
enactment as employers have largely reformed practices that most obviously
violate employment discrimination law. But many less obvious employment
practices, particularly those embedded in implicit bias or unconscious sex
stereotyping, remain. One example is employers’ distribution of managerial
decision-making power and authority based on assumptions about sex.
Although this particular employment practice has not yet been litigated,
there is a strong argument that a legal challenge to this practice could
succeed.

This Note argues that female managers can and should seek legal redress
under Title VII when they are given less decisional authority under
conditions that can only be explained by some implicit bias or sex
stereotyping. Both disparate treatment theory and disparate impact theory
provide viable paths for a litigant to pursue. Upon weighing the incentives
and drawbacks under each theory, this Note concludes that disparate
treatment theory offers the most promising and beneficial remedial pathway
for potential litigants.