|Jottings By An Employer's Lawyer|
Friday, September 26, 2014
Implicit Bias: A Brave New World
The lecture begins with a dismal fact: Everyone is a little bit racist or sexist. If you think you’re immune, take the Implicit Association Test, which empirically measures people’s biases. Dr. Welle goes on to explain that some of the most damaging bias is unconscious; people do the worst stuff without meaning to, or even recognizing that they’re being influenced by their preferences.Hardly a definition of intentional discrimination.
Of course, there is also a theory of discrimination, disparate impact, which can be used to challenge unintentional discrimination. It is tied to discriminatory results of a facially neutral business practice. Whether it can be wielded to really address implicit bias remains to be seen.
How implicit bias plays out in the world of employment litigation is an interesting legal issue.
Unfortunately for employers, interesting legal issues are often much more "interesting" for the lawyers than for their clients.