A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias (original) (raw)
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Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination
Studies consistently show that African Americans face more employment scrutiny and negative employment actions than their white coworkers. Recognizing that much of the explicit racism of the twentieth century has given way to subtle and often unconscious discriminatory biases, this Note argues that current Title VII jurisprudence contains the tools and legal distinctions to provide legal redress for this implicit bias. Discriminatory intent, a requisite showing for plaintiffs bringing Title VII disparate treatment claims, should not be understood to require proof of a particular mental state. Instead, the current law should—and could—simply require that plaintiffs demonstrate a causal link between their membership in a protected class and the adverse employment action that they suffered. Discriminatory actions by employers produce costs for society at large and for individual workers. Employers must therefore pay for the harms they cause, even if the employer did so because of implicit biases. Without employer liability for implicit bias and its discriminatory effects, this Note argues that barriers to equal employment opportunities will persist and victims of discrimination will bear the costs of unfair decisions made by employers.
Discrimination in the 21st century: Are science and the law aligned?
Psychology, Public Policy, and Law, 2011
Although scholars agree that traditional forms of discrimination have generally been supplanted by subtler interpersonal manifestations of discrimination, it is yet unknown whether targets of these behaviors or the American judicial branch recognize such negative behaviors as violations of extant law. Extending research and theory, we propose that denigrating messages toward women and ethnic minorities (i.e., microaggressions) emerge in workplace interactions and are sometimes interpreted as discrimination. Specifically, this research explores the presence, severity, and frequency of microaggressions that appear in a random sample of race and gender discrimination cases in federal court dockets since the year 2000. The results suggest that microinsults, microinvalidations, and microassaults are reported in a variety of discrimination claims. However, only overt and intentional forms of microaggressions (microassaults) increased the likelihood that decisions favored plaintiffs. Thus, there may be a disconnect between forms of discrimination perceived by claimants and how those forms are evaluated by the legal system that protects victims of discrimination. This potential misalignment of science and practice is discussed, as are directions for future research.
[PDF]Implicit Bias in the Courtroom
Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.
Stanford Law Review, 1995
Title VII's disparate treatment model of discrimination is premised on the notion that intergroup bias is motivational in origin. This premise, in turn, is based on a number of assumptions regarding the nature of human inference and the respective roles played by cognition and motivation in social judgment and decisionmaking. Applying insights from cognitive psychology, Professor Krieger examines the assumptions about human inference embedded in current disparate treatment theory and questions the premise that discrimination necessarily manifests intent or motive. She suggests that a large number of biased employment decisions result not from discriminatory motivation, as current legal models presume, but from a variety of unintentional categorizationrelated judgment errors characterizing normal human cognitive functioning. Because of the lack offit between the present disparate treatment model and the phenomenon it purports to represent, courts and litigants are presented with a confising array of increasingly ill-defined and questionably premised analytical paradigms. Worse, as currently constructed, it may be exacerbating intergroup tensions and inflating both social and financial adjudication costs. Searching for solutions Professor Krieger explores the legal and policy implications of a cognitive process approach to discrimination and equal employment opportunity and evaluates a variety of modifications to existing equal employment opportunity law. 5. Donohue & Siegelman, supra note 3, at 1019 (citing American Bar Foundation Employment Discrimination Litigation Survey, supra note 3). 6. 411 U.S. 792 (1973). 7. See text accompanying notes 56-67 infra for a discussion of the McDonnell Douglas model. 8. Existing disparate treatment jurisprudence in many ways equates a finding of pretext in plaintiff's favor with a finding that the employer has lied about the reasons for its decision.
2015
\\jciprod01\productn\G\GWN\83-3\GWN304.txt unknown Seq: 2 18-JUN-15 15:54 2015] IMPLICIT RACIAL BIAS 1009 of profiling. In sum, the Court's current conception of race discrimination is anemic and in urgent need of reform. Chin's and Vernon's arguments increase the likelihood that the Court will condemn racial discrimination as unreasonable under the Fourth Amendment. This would mark an important first step towards moving the Court to adopt a more realistic and broader conception of the harms of race discrimination.
What is Wrong with Implicit Bias? - An Investigation of the Moral Problems with Implicit Bias
2015
Implicit Bias is the automatic and unconscious tendency to associate certain traits with members of particular groups, which affect judgements and/or interactions with members from the denoted group. In philosophy the concept of Implicit Bias has often been treated as a thick normative (negative) concept, which I refute in my paper. My suggestion is that Implicit Bias, when it is wrong, is wrong because of wrongful discrimination.
Addressing Implicit Bias in the Courts
2013
1. The Open Society Institute, the State Justice Institute, and the National Center for State Courts funded the preparation of this article. The views expressed are those of the authors and do not necessarily reflect the views of the funding organizations. This article summarizes the National Center for State Courts’ project on implicit bias and judicial education. For the full report of the project, see PAMELA M. CASEY, ROGER K. WARREN, FRED L. CHEESMAN II & JENNIFER K. ELEK, HELPING COURTS ADDRESS IMPLICIT BIAS: RESOURCES FOR EDUCATION (2012) (hereinafter HELPING COURTS), available at http://www.ncsc.org/\~/media/Files/PDF/ Topics/Gender%20and%20Racial%20Fairness/IB_report_033012. ashx. 2. Various state-court reports of racial fairness task forces and commissions can be found through the National Center for State Courts’ website at http://www.ncsconline.org/Projects\_Initiatives/ REFI/SearchState.asp. To access the National Center for State Courts’ Interactive Database of State Prog...
Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test
For many legal scholars, startling scientific evidence of implicit racial bias, including the now famous Implicit Association Test (IAT), have revealed a truth about racial discrimination in America that had previously been difficult to prove. Yet despite commentators’ progress in considering how the law should respond to this new evidence of racial bias, two challenges have continued to limit legal scholarship on implicit bias from achieving its full potential. First, empirical social science on implicit bias has rarely focused on the law. For example, prior to the study presented in this article, no IATs had been designed specifically to test law-related hypotheses. And second, legal scholarship on implicit bias has tended to maintain a narrow substantive focus, often considering discrimination in the workplace and in policy-making, but rarely considering racial biases in other areas of law. The question, for example, of whether jury verdicts in criminal trials are tainted by impl...