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This article analyzes the different proof mechanisms developed under Title VII discriminatory treatment doctrine, demonstrating their ability to identify unconscious, as well as conscious, discriminatory behavior. It demonstrates that soon after its enactment Title VII began to evolve, expanding its reach to unconscious discrimination. Although in many instances courts were unaware of this expansion, courts appear to have followed their intuition to further the broad remedial and preventive purposes of the statute. In response to the evolution and to the courts' failure to articulate a justification for their decisions, a counter-evolution is currently occurring, with many courts attempting rigidly to adhere to the narrowest definition of discrimination. I argue that courts and legislatures should reject the new critique by openly providing a theoretical justification for existing methodologies that explicitly incorporates into the law the psychological and sociological evidence demonstrating that discriminatory behavior results from both conscious and unconscious bias, prejudice and stereotyping.

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9 Cornell J.L. & Pub. Pol'y 415 (2000).