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Implicit Bias in Employment Law: Introduction

Research Guide

Introduction

Every day, we observe and make judgments about other people without being consciously aware of it. These judgments can be based on body language, intonation, word choice, clothing, or any number of other things. For example, when you see a 5'7'', 280-pound man in ratty clothes, you are likely to unconsciously assume that he is not a professional athlete, although in reality he could be the greatest table tennis player on earth. These types of unconscious judgments are a generally innocuous part of our daily mental life. However, most people also make these same types of judgments based on a person's race, ethnicity, and gender. In psychology, this phenomenon -- the association of character traits with a person's immutable characteristics -- is known as implicit bias. In the employment context, implicit bias is one of the primary reasons that black men get called back less for interviews and women are less likely to be identified as having leadership potential. 

This guide will first give resources to understanding the science of implicit bias and its legal implications, or lack thereof. Next, it will share and explain contemporary research on the Implicit Association Test, the basic epistemological tool used to understand implicit  bias. Next, it will take you on a tour of the current theories of employment discrimination and how they fit (or do not fit) with our current understanding of implicit bias. Finally, it will share resources that will help you avoid implicit bias in the workplace and in your own life.

As  you read through, keep in mind these big questions: If discrimination because of race or gender is illegal, why is implicit bias so difficult to prove in a courtroom? What about our legal system makes it difficult for people to be held responsible for their unconscious biases? Is it fair or desirable for people to be dragged before the bar for unconscious discrimination? What sort of changes in the law would place unconscious discrimination in the cross-hairs of plaintiff's? Are those changes fair or desirable?

The research linked to in this guide will inform your answers these questions, but it will not take you all the way, for two main reasons. First, neither the science nor the law of implicit bias is settled. One good legal argument and one sympathetic appellate judge could transform the use of implicit bias in the courtroom, just as one well-designed study could upend our understanding of this phenomenon. Second, there is an element of moral (and political) judgment inherent in some of these questions. The deep questions about the nature and meaning of implicit bias in this country can best be answered by a research strategy focused on a wider understanding of history and sociology.

Resources Consulted and Research Strategy

Implicit bias is an understudied concept in the legal field, and is virtually constrained to the field of legal scholarship. There are not treatises, databases, or practice aids that are geared around understanding implicit bias. Because of this, law reviews and books were the most consulted source in the formation of this guide. Implicit bias is a recognized cognitive phenomenon, so peer-reviewed scientific journals were also frequently consulted. Because both legal snd psychological journals normally lie behind the paywalls of academic institutions, I expect this guide will be useful primarily by people with log-in credentials at these institutions. However, this guide also links out to several privately-sourced guides, reports, and other resources of great use.

My research strategy was to identify the most contemporary work on the topic of implicit bias, and then work backward from the sources used, moving in reverse chronological order until I reached the formative scholarship on the subject. It also included familiarizing myself with basics of Title VII jurisprudence, including the disparate impact and disparate treatment theories of discrimination, as well as current policymaking efforts to address implicit bias.

From there, it branched into the field of behavioral psychology, where there was a wealth of research on the science of implicit bias. Once I felt grounded in both of those topics, I looked at how courts were doing at bringing the science into the courtroom. Finally, I looked at ways that individual actors in the workplace can reduce implicit bias, and whether implicit bias can be effectively addressed without legal reform.

Because this research guide is intended mainly for law students interested in employment law, I don't recommend buying any of these resources. They can all be procured at a library.

Current Awareness Tools

Current awareness in the field of implicit bias can be maintained most easily by frequently checking psychological  and legal journals. Because the field is pretty small on the legal side, checking with individual authors that have published in the field before might be more efficient than doing large-scale keyword searches on HeinOnline or Westlaw. I found that implicit bias research was available in every case on both Hein and Westlaw and so chose to use Westlaw for usability reasons, but be aware that Hein has a more comprehensive collection of scholarship in general. On the psychological side, I recommend regular keyword searches of the online library search function at your educational institution or local library.

Are Emily and Greg More Employable Than Lakisha and Jamal?

As a starting point, consider something every person has that we know will have no correlation with job fitness: A name.

In 2003, two economists sent 5000 resumes to 1300 employers. For each position, they sent identical resumes save one difference: One set of resumes had a stereotypically "white" name (Greg, Emily, etc.) and the other set had a stereotypically black name (Lakisha, Jamal). In a world free of implicit bias, the substantively identical resumes would logically result in approximately identical response rates.

The reality was nowhere close. Resumes with white names had a 50 percent higher callback rate -- meaning a white person need only send 10 applications to get the results that a black person would need 15 applications to get. This study, which has been replicated numerous times, is the "smoking gun" for the presence of implicit bias as a meaningful factor of employment.

No one thinks that managers are systemically weeding out black applicants on purpose. Instead, the black name is triggering common implicit negative assumptions made about black people, which is leading to a lower response rate despite the fact that the resumes are exactly the same.

This study remains provocative, and has garnered media attention and criticism. But the basic findings appear to be sound and replicable. What other types of names do you think would invoke implicit biases in the resume-readers?