Tuesday, September 26, 2017

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.

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