This is an interesting post. Patrick Shin, author of the paper that is discussed, wonders whether anti-discrimination laws should take unconscious bias into account. Setting aside practical difficulties at first, the paper starts with the assumption first that unconscious bias exists, and second that it is provable individually, and then posits hypotheticals to get at whether our current employment discrimination laws can get at unconscious bias. It's well worth reading.
Were this idea to somehow be worked into Title VII and the like, it would certainly be a revolution in anti-discrimination law. It's not completely implausible, either. Right now we have two standards in Title VII - disparate treatment and disparate impact. This is sort of a bridge between the two. Disparate treatment is the classic "we don't hire black people" kinda thing, and disparate impact allows for proof that a policy discriminates regardless of stated intent. So basically, what Shin is proposing takes the standard of the blameless, systematic effects (disparate impact) and assigning blame to one or more of a string of employers to bring it within the ambit of disparate treatment.
Of course, the reality remains that even though we know unconscious discrimination is definitely real (it's why disparate impact even exists), it's likely unprovable in an individual case in the sense of assigning blame. (UPDATE: To clarify, I mean proof in the legal sense - proof of bias at a given instant, attributable to one person. Systemic unconscious bias is well-known to exist.) That's what would make this so revolutionary. In order to win in court under this theory, the judge/jury would have to basically have internalized the Avenue Q song ("Everyone's a little bit racist."). It would certainly make our anti-discrimination practice a lot stronger in a world of "colorblind" racism.
However, I just can't even imagine what would happen at the Supreme Court, given how unfriendly they are to the disparate impact standard that actually is established law.
(via The Debate Link)
