(concurring in part, dissenting in part).
I concur with the holding of the majority opinion that the petitioners’ motion for summary judgment was properly denied and that the matter must be remanded for further proceedings but I respectfully dissent from the holding that the defense of official immunity may be asserted in an action brought under the public service provision of the Minnesota Human Rights Act, Minn.Stat. § 363.03, subd. 4 (1990).
Official immunity is a common law doctrine applicable to state tort actions. Under its protection, “a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn.1988). The Minnesota Human Rights Act, creating a statutory cause of action, has no basis in the common law and there is no common law right protecting a police officer from a legislatively authorized claim of race discrimination in public services. Had the legislature seen fit to provide that protection, it would have incorporated common law immunity into the Human Rights Act as it has done in other statutes. See, e.g., Minn.Stat. § 125.09, subd. 5 (1992) (school board members acting in good faith and with due care are immune for official actions under this section); Minn.Stat. § 626.556, subd. 4(b) (1992) (social workers immune from any civil or criminal liability resulting from the person’s actions reporting the maltreatment of a minor if person is acting in good faith). The extent to which the legislature intended to provide immunity within the provisions of the Human Rights Act, however, appears to be its limitation of the personal liability for punitive damages of members of a governing body of a political subdivision. Minn.Stat. § 363.071, subd. 2. As the court of appeals notes, “[t]he specific integration of statutory immunities that parallel, rather than alter, the contours of common law official immunity * * * emphasizes that official immunity is not implicit in all statutory enactments.” 498 N.W.2d 503, 506 (Minn.App.1993).
Even under the analysis of the majority opinion, however, official immunity should not be asserted in an action brought under the Human Rights Act. The majority opinion relies on the presumption that statutory enactments are consistent with common law doctrines unless the statute abrogates the common law by express wording or necessary implication. As the majority opinion notes, nothing in the Human Rights Act ex*575pressly disallows official immunity as a defense to a claim brought under the. Act. I disagree, however, with the conclusion that the Act does not abrogate the doctrine of official immunity by necessary implication.
To establish a claim of discrimination under Minn.Stat. § 363.03, subd. 4 the record must establish:
(1) an adverse difference in treatment with respect to public services of one or more persons when compared to the treatment accorded others similarly situated except for the existence of an impermissible factor such as race, color * * *; or (2) treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation. City of Minneapolis v. Richardson, 307 Minn. 80, 87, 239 N.W.2d 197, 202 (1976).
The majority opinion recognizes that the “manifest purpose of section 363.03, subdivision 4 of the Human Rights Act is to eradicate discrimination in the provision of public services, including the provision of law enforcement services,” but concludes that official immunity will not undermine this remedial purpose because police officers will not be protected from willful or malicious misconduct. Thus, “official immunity would only bar discrimination claims brought under Minn.Stat. § 363.03, subd. 4 where there was no showing of willfulness or malice.” Op. at 570.
This conclusion inappropriately equates the standard for proving racial discrimination under the Human Rights Act with the “willful and malicious” standard necessary to avoid application of official immunity. These standards are not the same. Nothing in the Human Rights Act requires a plaintiff to prove discriminatory intent on the part of the defendant. By permitting the defendant to assert a defense of official immunity, the majority opinion grafts an intent requirement onto the Act.
Contrary to the claim of the majority opinion that “there are few circumstances where a public official might be deemed to have committed a discriminatory act under Minn. Stat. § 363.03, subd. 4, and yet be deemed not to have committed a malicious or willful wrong under the principally objective standard set forth in Rico,” a large part of the behavior that produces racial discrimination is influenced by unconscious racism. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan.L.Rev. 317 (1987) [hereinafter Unconscious Racism ]. Although it often may be appropriate for the legal system to disregard the influence of the unconscious on individual or collective behavior, where the controversy centers on a statute designed to eradicate racial discrimination, the law must recognize that this goal will only be achieved when all sources of racially discriminatory behavior are identified and addressed.1
To add a motive-centered intent requirement creates an imaginary world where discrimination does not exist unless it is intended. The injury of racial discrimination exists irrespective of the defendant’s motives and it is no less injurious or reprehensible when it originates in the unconscious. Since improper motives are easy to hide, the majority opinion gives those the statute was designed to protect a heavy burden of persuasion and severely limits the number of eases in which *576courts will acknowledge and remedy racial discrimination.
I would affirm the decision of the court of appeals and hold that official immunity does not apply to discrimination claims under the Minnesota Human Rights Act.
GARDEBRING, J. I join in Justice Wahl’s dissent in part. PAGE, J. I join in Justice Wahl’s concurrence in part and dissent in part.. Professor Lawrence proposes a "cultural meaning" test, to trigger judicial recognition of race-based behavior. He suggests courts look at the cultural meaning of an allegedly racially discriminatory act as the best analogue for, and evidence of, a collective unconscious that cannot be observed directly. Thus, where a particular act sends a symbolic message to which our culture attaches racial significance, courts could find evidence of racial discrimination. Unconscious Racism, at 355-62.
As Professor Lawrence notes, courts frequently interpret the meaning of social phenomena. For example, in Establishment Clause cases, courts determine whether a government practice advances or inhibits religion by inquiring into the meaning the culture gives that practice; in determining the scope of the "zones of privacy” protected by Due Process Clause of the Fourteenth Amendment, courts interpret the concept of the family by referring to the meaning that the history and traditions of our culture have given it; and in Fourth Amendment cases, courts define the scope of protection from unreasonable searches and seizures by asking whether a person has a "reasonable expectation of privacy” in the searched premises. Id., at 359.