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In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual fashion by elevating colorblindness above all other values; it both limits and expands disparate treatment to conscious use of race in decisionmaking while simultaneously restricting the usefulness of disparate impact to attack policies and practices having a disparate effect on historically disadvantaged groups. This redefinition of discrimination tilts the law toward protecting the interests of white employees over those of their black and other minority colleagues because discrimination against minority employees has gone underground - both consciously and unconsciously - and, therefore, cannot be remedied. Additionally, any overt attempt to remedy discrimination against racial minorities is treated as discrimination against their white counterparts. Professor McGinley suggests that scholars work on a new proof construct that would accommodate what we currently know about discrimination: that much of it operates at the unconscious level.

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75 Missouri Law Review 443 (2010)