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Miriam Kim
Excerpted from: Miriam Kim, Discrimination in the Wen
Ho Lee Case: Reinterpreting the Intent Requirement in Constitutional and
Statutory Race Discrimination Cases, 9 Asian Law Journal 117 - 161, 134-
144 (May, 2002) (324 Footnotes) (Student Article)
Just before releasing Lee, Judge Parker told him:
It is only the top decision makers in the Executive Branch ... who
have caused embarrassment by the way this case began and was handled.
They did not embarrass me alone. They have embarrassed our entire
nation and each of us who is a citizen of it. I might say that I am
also sad and troubled because I do not know the real reasons why the
Executive Branch has done all of this.
While Judge Parker was uncertain as to the "real reasons"
behind the Executive Branch's actions, Wen Ho Lee's supporters have
asserted that the Executive Branch targeted Lee because of his race.
They contend that the government engaged in illegal racial profiling
when it investigated, prosecuted, and terminated the employment of Wen
Ho Lee.
We may never know the "real reasons" behind the Justice
Department's decision to handle the case as it did. However, this
Comment will show that the Wen Ho Lee affair demonstrates that the
existing interpretation of the intent requirement may be inadequate to
deal with situations where the decision maker's actions raise an
inference of invidious race discrimination. This Part briefly introduces
the existing intent requirement and argues that intent must be
reinterpreted in both the constitutional and statutory contexts to
provide any hope for a claimant like Wen Ho Lee.
A. The Intent Requirement in Selective Prosecution Cases
Criminal defendants may raise selective prosecution claims under the
Equal Protection Clause of the Fifth Amendment. Central to the notion of
equal protection is the "prevention of official conduct
discriminating on the basis of race." One of the earliest
discrimination cases under the equal protection clause was Yick Wo v.
Hopkins, in which a claimant of Chinese descent challenged two San
Francisco ordinances requiring a city permit to establish and maintain a
laundry housed in a wooden building. While the ordinances seemed fair
and neutral on their face, they disproportionately affected Chinese
immigrants who owned nearly all of these laundries. Of approximately 320
laundries in San Francisco at the time, about 240 were owned and
operated by Chinese immigrants. While the city granted permits to
non-Asians, the city refused to issue permits to Asians. The Supreme
Court held that the application of the ordinances was "so unequal
and oppressive" that they discriminated illegally against Chinese
laundrymen.
The selective prosecution doctrine arose from Yick Wo and its equal
protection progeny. In the realm of criminal prosecution, the equal
protection clause serves as a constitutional constraint on prosecutorial
discretion. Specifically, the equal protection clause prohibits
prosecutorial decisions based on one's race, religion, or other
arbitrary classification.
In Wayte v. United States, the Supreme Court established the proof
framework for a selective prosecution claim under the equal protection
clause. The defendant in Wayte claimed that he had been selectively
prosecuted because of letters he had written to the President and other
government officials expressing his refusal to register for the draft.
To prevail on such a selective prosecution claim, the Court held that
the defendant must demonstrate that the prosecutorial decision: (1) had
a "discriminatory effect" and (2) was "motivated by a
discriminatory purpose."
The intent requirement in selective prosecution claims is encompassed
in the discriminatory purpose prong. To prove discriminatory purpose,
the defendant must make out a prima facie case, or presumption, of
purposeful discrimination. The burden then shifts to the prosecution to
show the use of "permissible racially neutral selection criteria
and procedures." If the prosecution fails to give an adequate
explanation, dismissal may be warranted.
B. The Intent Requirement in Title VII Cases
If Wen Ho Lee were to bring an employment discrimination claim, he
would likely file a disparate treatment claim under Title VII of the
Civil Rights Act of 1964 (Title VII), which prohibits discrimination in
the workplace on the basis of race, color, religion, sex, or national
origin. Disparate treatment cases are divided into three general
categories: (1) individual versus pattern and practice cases or class
actions; (2) direct versus indirect methods of proof; and (3) single
versus mixed-motive cases.
In most disparate treatment cases, it is difficult for the plaintiff
to produce direct evidence of the employer's intent to discriminate. It
is questionable whether there is direct evidence of discrimination in
Lee's case. For instance, the statements about race and ethnicity to
which Vrooman and Hecker testified may suffice as direct evidence of
intent to discriminate against Lee and Chinese scientists more
generally. But because Trulock and other government officials deny
making these remarks, the case would be examined as an indirect evidence
case.
In the absence of direct evidence of employment discrimination, the
allocation of burdens and order of presentation of proof in disparate
treatment cases is a three-step process, as set out in McDonnell Douglas
v. Green. The plaintiff-employee has the initial burden of establishing
a prima facie case of discrimination. The burden of production then
shifts to the defendant-employer to rebut the prima facie case with a
legitimate, non-discriminatory reason for the adverse employment action.
If the defendant is successful, the presumption of discrimination drops
and the burden of production shifts back to the plaintiff to establish
that the defendant's proffered explanation is pretextual.
Throughout, the plaintiff-employee retains the ultimate burden of
establishing intentional discrimination by a preponderance of the
evidence. The Supreme Court recently reiterated the intent requirement,
stating that "[t]he ultimate question in every employment
discrimination case involving a claim of disparate treatment is whether
the plaintiff was the victim of intentional discrimination." That
is, even if a plaintiff was treated differently, she must prove that the
differential treatment was caused by intentional discrimination.
C. The Prevailing Interpretation of Intent: Conscious Intent
The prevailing understanding of intent has been that it must be
motivational in origin. In a recent employment discrimination case, the
Court held a claimant must show that "the protected trait actually
motivated the employer's decision." Under this framework, an
inquiry of intent becomes an inquiry into the subjective mind of the
decision maker. As part of a motivational understanding of intent, some
scholars have equated intent with malice, hostile animus, ill will, or
prejudice. But others have noted that the intent requirement does not
require the decision maker to act on such malign bases. In fact, the
Court has found intentional discrimination to exist even where decisions
are based on benign and benevolent actions.
Similarly, conscious awareness of harm is insufficient to satisfy the
intent requirement. In Personnel Administrator v. Feeney, an equal
protection discrimination suit challenged a civil service preference for
veterans. The Court in Feeney held that conscious awareness may be an
element of intent, but standing alone, is insufficient to prove unlawful
discrimination. The Court found that the veteran preference's disparate
impact on women was insufficient to prove discriminatory purpose. The
Court stated that discriminatory purpose "implies more than intent
as volition or intent as awareness of consequences." A plaintiff
must show that the decision maker "selected or reaffirmed a
particular course of action at least in part 'because of,' not merely
'in spite of,' its adverse effects upon an identifiable group."
The "because of" language in Feeney suggests that the
correct understanding of the Court's definition of intent is
causation-based and not motivational. Scholars have long argued that
intent is best understood as a causation concept, where one asks whether
"an individual or group was treated differently because of
race." Instead of inquiring into the subjective mind of the
decision maker, the causation approach asks whether the plaintiff's
protected status was a motivating factor with a determinative effect on
the decision.
The Court's interpretation of the intent requirement continues to
require a demonstration that conscious intent motivated the decision
maker. A motivational intent interpretation is flawed because it: (1)
requires one to inquire into people's motivations resulting in numerous
problems; (2) rests on the myth that intent is necessarily conscious;
and (3) fails to account for cognitive bias and subtle forms of
discrimination.
1. Difficulties of a Motivational Inquiry
A motivational intent interpretation is flawed because of the
problems posed by the requisite inquiry into the subjective mental state
of the decision maker. Social cognition theory demonstrates that
individuals often are not consciously aware of what motivates them to
act. In the late 1970s, psychologists Richard Nisbett and Timothy Wilson
conducted a study showing that people are poor at identifying the causal
efficacy of stimuli on their evaluations, choices, and decisions.
Nisbett and Wilson manipulated components of complex stimulus situations
such that the effect of certain stimuli on subjects' choices could be
measured. If the stimulus had a significant causal effect, subjects
usually said it did not influence their choices. If the stimulus had no
significant effect on their choices, subjects reported it as
determinative. It is false to assume that decision makers are always
conscious of their decisions and the rationale behind those decisions.
Even if individuals are aware of the biases that may motivate them to
discriminate, they probably are unwilling to admit to these biases and
potentially expose themselves to liability. Without candor, conscious
intent presents a nearly insurmountable burden of proof. This problem is
exacerbated when the decision maker is not one individual but a group of
individuals. The subjective mental state of a group becomes nearly
impossible to probe let alone prove. An inquiry into motivation is
further complicated by the requirement that discriminatory intent exist
at the "moment of decision." Stereotypes and bias can corrupt
the decision-making process long before the moment of decision,
particularly where decisions are made by a group of individuals.
2. The Myth of Consciousness
A motivational understanding of intent is also flawed, because it
"represents an outdated view of human behavior" that
discriminatory intent is necessarily conscious. Mainstream America
disapproves of overt race discrimination, but discrimination still
exists today -- often in unconscious or subtler forms than in the past.
Charles Lawrence argued that much discriminatory treatment in modern
society is attributable to unconscious motivations. He reasoned that
discrimination is unconscious in that racism is largely a product of
historical, cultural heritage that unconsciously influences one's
beliefs and actions toward blacks.
The equal protection and Title VII proof frameworks falsely assume
that absent discrimination, decision makers will act on a rational
basis. In the prosecutorial context, the Court has acknowledged the
"presumption of regularity" that supports prosecutorial
decisions and, in the absence of clear evidence to the contrary,
presumes "[prosecutors] have properly discharged their official
duties." In the employment context, the Court has similarly assumed
that employers act rationally absent discrimination.
In "The Content of Our Categories: A Cognitive Bias Approach to
Discrimination and Equal Employment Opportunity," Professor Linda
Krieger exposed the falsity of the assumption that decision makers act
rationally absent discrimination. On the contrary, Krieger argued,
discrimination is not a result of motive or intent, but rather an
automatic, "unwelcome byproduct" of otherwise normal cognitive
processes. If discrimination is "automatic" as Krieger
suggests, decisions may be tainted with discrimination even when
conscious intent is lacking. Krieger's elucidation of some major
concepts of social cognition theory provides an essential basis for
understanding the subtle forms of discrimination that may have been at
work in the prosecutorial and employment decision-making processes in
the Wen Ho Lee affair. The following section outlines some of those
concepts.
3. Cognitive Bias and Subtle Discrimination
Courts define stereotypes differently from social cognitive
psychologists. Under existing disparate treatment case law, courts view
stereotypes as determining the roles deemed appropriate for members of
particular groups. In other words, one's group status acts as a
"proxy" for a stereotypical trait -- at the moment of the
decision, independently of cognitive processes. In contrast, social
cognitive psychologists view stereotypes as cognitive structures that
"cause discrimination by biasing how we process information about
other people."
a. Stereotypes as Schemas
According to social cognition theory, stereotypes are schemas that
represent "a person's accumulated knowledge, beliefs, experiences
(both direct and vicarious), and expectancies regarding the schematized
construct." These "social schemas" cause us to classify
individuals and objects into different categories -- black and white,
small and big, female and male -- and to create a mental prototype of a
"typical" category member. While schemas may be useful in
organizing information, they act as implicit biases on information
processing which may result in discrimination, both unintentional and
unconscious.
Once a given stereotype or "schema" is triggered, it
"activates" the traits with which it is categorized. The
schema then influences the processing of incoming information and the
drawing of inferences about the action or event at issue. In the Wen Ho
Lee affair, for example, the stereotype of "perpetual
foreigner" may have been triggered when DOE officials began their
investigation of Lee. Once the foreigner stereotype was triggered,
various traits related to that stereotype, e.g., inscrutability,
disloyalty, and distrust, may have influenced the processing of
subsequent information about Lee.
b. Interpretation of Ambiguous Events
A significant way in which schemas affect information processing is
the interpretation of ambiguous events. In one study, subjects were
shown a silent videotape of a verbal exchange between two males, one
white and one black. A buzzer rang intermittently, and subjects were
asked to rate the intensity of the exchange. At one point, one
participant (protagonist) shoved the other (victim). The buzzer rang,
and subjects rated the exchange differently depending on the race of the
protagonist. If the protagonist was white, subjects rated his behavior
as "playing around" or "dramatizing." But if the
protagonist was black, subjects viewed the same behavior as
"aggressive" or "violent." This and other studies
show that once behavior (e.g., shoving) is interpreted and encoded as a
trait (e.g., "playing around" or "aggressive"), its
meaning is "fixed" and affects subsequent judgments concerning
the individual. Specifically, the trait then "supports and
validates the preexisting stereotypic expectancy."
In the Wen Ho Lee affair, Lee's interactions with Chinese scientists
and officials may have activated the relevant schema of
"suspicious" or "disloyal" traits. In 1994, for
example, Wen Ho Lee appeared at a LANL briefing and was warmly greeted
by one of China's top nuclear scientists who was leading a visiting
delegation of Chinese weapons officials. Lee's exchange with the
scientist surprised a LANL official, prompting a reporting of the
incident to the FBI. For the LANL official, Lee's actions may have
triggered the assumption that Asians are perpetual foreigners who remain
loyal to Asian countries. In contrast, a similar greeting by a white
employee may have been viewed as "friendly" or
"cordial." Once the greeting was interpreted and encoded as a
trait (e.g., "suspicious"), its meaning was "fixed"
and may have affected subsequent judgments concerning Lee's other
activities, namely the downloading and copying of files. Lee's future
travels to China may have also been viewed as suspect, whereas other
individuals' trips to China may have been considered purely personal.
c. Simulation Heuristic
The simulation heuristic is also useful in understanding the
inferential processes that may have corrupted key decisions in the Wen
Ho Lee affair. The simulation heuristic is based on the assumption that
people construct images of various scenarios in determining the
probability of a given event or situation. According to the theory, the
more vividly a single plausible scenario can be constructed, the more
plausible the specified event will seem. Amos Tversky and Daniel
Kahneman, two noted theorists who labeled the heuristic, explain:
"The use of scenarios to assess probability is associated with a
bias in favor of events for which one plausible scenario can be found,
with a corresponding bias against events that can be produced in a
multitude of unlikely ways." In short, a specified event or
situation is considered to be more probable if a single plausible
scenario can be simulated in vivid detail.
For instance, an investigator (e.g., Notra Trulock) with a list of
potential suspects would view a particular person (e.g., Wen Ho Lee) as
more suspicious if he could construct and vividly imagine a single
plausible scenario of espionage involving that person. Once
investigators place a target under suspicion, they would find suspicious
activity relating to the target in the most unsuspecting places. They
would begin to see evidence differently so that unexplained
inconsistencies and omissions become suspicious, making additional
scenarios even easier to generate.
d. Causal Attribution
Cognitive biases may also corrupt causal attribution, the way in
which people try to understand the causes of an action or behavior. Once
a stereotype is triggered, studies show that individuals usually
attribute stereotype-consistent behavior to recurring, internal
dispositional or stereotypic traits without attempting to search for
other potentially relevant information. In contrast, people tend to
attribute stereotype- inconsistent behavior to transient, external
factors about the actor's situation or environment. Because people
usually believe that stereotype-consistent behavior (or misbehavior) is
caused by recurring factors and therefore more likely to recur, they
consider such behavior worthy of more severe punishment than
stereotype-inconsistent behavior.
Attribution bias may distort the "similarly situated"
analysis in discrimination cases. "Similarly situated"
analysis, in the prosecutorial context, consists of determining whether
individuals similarly situated to the claimant could have been
prosecuted but were not. In the employment context, the analysis is used
to help determine whether an employee was treated differently from
similarly situated individuals because of his group status. Cognitive
biases may cause decision makers and fact finders to attribute different
causes to certain types of action and behavior depending on the actor.
As a result, decision makers may not consider seemingly similarly
situated individuals to be similarly situated at all.
For example, in the case of Wen Ho Lee, the causal attribution
phenomenon could have distorted the way in which decision makers viewed
Lee and interpreted his actions. For instance, decision makers may have
viewed his downloading and copying of files as stereotype-consistent
behavior attributable to dispositional factors of inscrutability and
disloyalty. Decision makers may have believed that Lee would continue to
download files if his access were not revoked. This may explain why DOE
authorities suspended Lee's X Division clearance even after he had
passed a polygraph test, and why they eventually terminated his
employment. In contrast, decision makers may have viewed John Deutch's
downloading of files as stereotype-inconsistent behavior or perhaps
behavior involving no stereotype at all. In that case, causal
attribution theory suggests that decision makers would attribute such
behavior to external factors or circumstances. This would help explain
(but not justify) why Deutch received a significantly milder punishment
than Lee.
[d1]. J.D. May 2002, University of California at Berkeley Boalt Hall
School of Law; A.B. 1998, Harvard University. |
