Judge Nancy Gertner and Melissa Hart have recently posted their chapter, titled “Implicit Bias in Employment Discrimination Litigation,” (in Implicit Racial Bias Across the Law, Cambridge University Press, 2012) on SSRN. Here is the abstract.
Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.
Download the chapter for free here.
Related Situationist posts:
- Nancy Gertner on the Situation of Feminism
- Judge Nancy Gertner on her Situation
- The Gendered Situation of Recommendation Letters
- The Double-Binded Situation of Even Women Lawyers
- Examining the Gendered Situation of Harvard Business School
- A Rose by any other Name Might Become a Judge
- Not Just Whistling Vivaldi
- The Nerdy, Gendered Situation of Computer Science
- The Situation of “Opting Out”
- The Gendered Situation of Science & Math
- The Situation of Sexism
- Sexual Harassment at Wal-Mart?
- Women’s Situation in Economics
- The Situation of Gender in the Workplace