Abstract
Racist stereotype threat (RST) describes a concern experienced by many people in interactions which are racially fraught: It arises when a person anticipates being evaluated, or sees an ingroup member being evaluated, in light of a stereotype that their group is racist. Because white people are more likely to anticipate being stereotyped as racist, RST is particularly common for white people in difficult interracial interactions. When anyone experiences RST, they tend to behave in racially disparate ways.
This Article explores traces of RST on civil rights doctrine. In civil rights cases, judicial opinions often selectively empathize with the feelings of white litigants, suggesting that the suspicion of racism is itself racist and shortchanging protected equality interests to protect white litigants against it. In equal protection, employment discrimination, and voting rights cases, judge-made doctrines empower white litigants to invoke their desire not to be judged racist as both sword and shield. Litigants’ presumed or asserted experience of RST has been accepted as basis to challenge government action in both affirmative action and voting rights doctrines. The invocation of RST also works as a defense to Equal Protection and employment discrimination claims, where intent requirements shelter defendants from accountability for the racially disparate effects of their actions unless they are proven racist. This requires plaintiffs to frame racial justice claims in the terms most likely to evoke RST in defendants and in any decisionmaker who sympathizes with them. No similar accommodation is extended to stereotype threats experienced by nonwhite civil rights plaintiffs, whose sense of group-based injustice or outraged dignity is insufficient to ground an Equal Protection claim and is deemed largely irrelevant to the courts’ “objective” standard of
workplace discrimination. In both equal protection and employment law, liability depends on white mindsets. The civil rights guaranteed by the Reconstruction Amendments and the Civil Rights Act should not be limited to accommodate RST.
