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Abstract

This Article joins together threads of ongoing conversations regarding implicit bias and gender discrimination. The Article builds on the groundbreaking work of Susan Sturm of Columbia University who developed the theory of second generation gender discrimination, Title VII gender discrimination based on implicit bias, in her article Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458 (2001). In her article, Sturm developed a theory to pursue Title VII claims where the employment practice at issue is facially-neutral, but the effect of the policy in a bias-based, homogeneous work environment is discriminatory. Since 2001, several high profile cases have tested the theory with varying success. This Article explores Sturm’s theory through the lens of two cases: the well-known case of Wal-Mart v. Dukes and the lesser-known trial court case of Ellen Pao against the Silicon Valley venture capital firm Kleiner Perkins. The Article refines the second generation gender discrimination theory by defining the complex continuum of bias-based discrimination and exploring the impact of that continuum in the two subject cases. The Article then examines the role of the court system, judges, and juries, in evaluating complex second generation claims and argues that a Third Generation of Gender Discrimination exists in the court system, which prevents second generation discrimination cases from achieving greater success. The Article argues that Third Generation Discrimination operates on its own continuum that perpetuates the complexity of bias-based discrimination and requires an interrupter to allow for meaningful change in litigation success and, as a result, workplace culture.

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