The Situationist

Posts Tagged ‘unconscious discrimination’

Liability for Unconscious Discrimination?

Posted by The Situationist Staff on April 28, 2010

Patrick Shin recently posted his excellent article, titled “Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law” (forthcoming Hastings Law Journal) on SSRN.  Here’s the abstract.

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A steadily mounting body of social science research suggests that ascertaining a person’s conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law.

My purpose in this paper is to focus directly on what might be called a more naïve question: should implicit bias be a basis of disparate treatment liability under Title VII? The question might fairly be regarded as naïve insofar as any proposal for such liability would surely be unripe for present implementation, in light of serious issues pertaining to problems of proof in individual cases, not to mention intramural disputes among experts about the proper practical inferences that can be drawn from extant social science research.

My interest, however, is more theoretically basic. I want to understand whether and how the notion of unconsciously biased action fits into our operative legal concept of actionable discrimination. To reach that issue, I devise a thought experiment in which I assume, first, that unconscious or implicit bias is real in a sense that I will make explicit, and second, that unconscious discrimination is provable – i.e., that the influence of implicit bias on an agent’s action is something that can, in principle, be proved in individual cases. With these assumptions, I construct an hypothetical test case that squarely raises what I regard to be the hard question for theorizing about unconscious discrimination. Should an employment action give rise to liability when that action was provably affected by the actor’s unconscious bias in respect of a statutorily protected classification, even when the actor consciously acted only on legitimate, nondiscriminatory reasons? The payoff of this thought experiment is not only a clearer picture of the theoretical commitments entailed by liability based on unconscious bias, but also a keener understanding of our currently prevailing notions of actionable discrimination.

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You can download the paper for free here.  For a sample of related Situationist posts, see “Krieger on the Situation of Discrimination in France,” “What Are the Legal Implications of Implicit Biases?,” Colorblinded Wages – Abstract,” Firefighters and the Situation of “Merit”,” and The Situation of Situation in Employment Discrimination Law – Abstract.” For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Posted in Abstracts, Implicit Associations, Law | Tagged: , , , | 1 Comment »

A Critical View of “The Discriminating Mind”

Posted by The Situationist Staff on May 2, 2008

Image by nedrichards - FlickrAmy Wax posted her article, “The Discriminating Mind: Define it, Prove it” (forthcoming 40 Connecticut Law Review (2008)) on SSRN. The abstract is below.

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Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect well-documented supply side disparities between groups in human capital development, qualifications, and behavior. These patterns are not most effectively addressed by focusing on unconscious processes, but rather by scrutinizing neutral practices for efficiency and social usefulness and also by attempting to eliminate underlying group differences in the ability to compete for social rewards.

Likewise, allegations of unconsciously motivated disparate treatment, which are based on the contention that race or sex plays a causal role in social outcomes, should be scrutinized for alternative, non-discriminatory explanations for observed disparities, including supply side differences between groups. In addition, some disparities attributed to unconscious bias could just as well be explained by old-fashioned statistical or rational discrimination, which is also fueled by real, average, observable differences in performance by race or sex. In general, sweeping and categorical claims of unconscious discrimination are unwarranted without specific evidence that this process is actually operating in a given case. Such evidence is hard to come by. In many cases, supporting such claims requires excluding alternative explanations – including supply side explanations for observed disparities in group success.

Posted in Abstracts, Implicit Associations, Public Policy | Tagged: , , , , , , | Leave a Comment »


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