Patrick Shin On Liability for Unconscious Discrimination

 Lounge readers, particularly those working in the fields of
discrimination and employment law, are probably already familiar with the
research on “implicit” or unconscious bias.  Many will recall, for example, the heated debates a few
years back over Implicit Association Testing, featuring,
on one side, Mahzarin Banaji and her colleagues, and Philip Tetlock and Hal
Arkes, on the other.  Given the
implications for discrimination law, the dispute naturally made its way into
the legal academy quickly, with prominent contributions from Jerry Kang and
Banaji, Greg
Mitchell and Tetlock, Christine
Jolls and Cass Sunstein, Sam Bagenstos, and Ian
Ayres, among others.

In a provocative
piece recently posted to SSRN, Pat
Shin (Suffolk) sets aside the practical and empirical disputes that largely
characterized these prior exchanges in order to explore what he terms the “deep
problem:” as a normative matter, should employment discrimination laws be
understood to encompass liability for actions tainted by unconscious bias?  In order to do so, Shin makes several
simplifying assumptions and develops two intriguing hypotheticals, in the hopes
of gaining a keener understanding of our currently prevailing notions of
actionable discrimination. 

Shin assumes, first, that unconscious bias is real and,
second, that it is provable in individual cases.  Shin then develops two hypotheticals:

Work Experience I:
Black Applicant performed slightly better in the job interview than White Applicant,
who has more work experience. 
Employer decides that work experience is the most important factor, and
hires White Applicant.  Employer’s
decision was influenced by unconscious bias in favor of whites, yet honestly
believes that his choice was based on White Applicant’s superior work
experience.

Work Experience II:  Same facts as above, but the Employer's decision was not affected by unconscious bias and the reason
that Black Applicant has less work experience than White Applicant is because
he had great difficulty obtaining employment in the early years of his career
because of intentional discrimination by other potential employers.

Should the employer in Work
Experience I be liable for employment discrimination?  Shin argues that liability in Work Experience I (much less II) is
implausible under current case law, but is not foreclosed by the literal
language of Title VII.  But Shin
contends that liability for unconscious discrimination would be controversial,
even if there were convincing evidence that it would reduce workplace
inequality.  The interesting
question is why this is so.  He
argues that it is because the justificatory conception of discrimination (under
which courts judge Employer’s rationales for acting) is deeply engrained in
current law and a move to the causal conception (under which courts engage in
the quasi-scientific business of identifying the psychological and causal
antecedents of Employer’s actions) would represent a radical shift in our understanding
of what discrimination is, not just an incremental expansion of the scope of
the employment discrimination laws. 
In other words, it moves our conception of discrimination away from the
paradigm of individual blame, and more toward a tax on the societal factors
that contribute to workplace inequality.

But Shin argues that, although he doubts anyone would say
that Employer is liable for discrimination in Work Experience II, it is deeply plausible to believe that there is
no meaningful difference between Work
Experience I and II.  In other words, both should be
actionable (as a theoretical matter) under current discrimination law or
neither should be. 

Though the paper remains somewhat agnostic on the ultimate
question of whether discrimination law should
reach Work Experience I and II, Shin’s conclusion strikes me as
willing to contemplate that possibility. Such an understanding of
discrimination, Shin correctly concludes, “must be understood not as a practice
of enforcing norms of individual responsibility, but about effecting social
change and reform.”

Unlike my colleague, Kate Bartlett, whose recent Virginia Law
Review article defends the importance of “good intentions,” I’m untroubled
by the potential demoralization of discrimination law that such a move would
entail, for reasons that Shin largely addresses in the paper.  (Interested readers can stop by Duke
almost any day to watch Kate and me dispute the importance that the legal
regime should attach
to motive — particularly, altruism
versus profit-seeking — in any number of settings.  The paradigm of a great senior
colleague, she’s always game for these exercises).

The questions that I’m left with, though, are largely the
ones that Shin purposely sets aside for purposes of what, admittedly, is a real
challenge to my prior conceptions about both the doctrine and purposes of
discrimination law. Assuming that Work
Experience I is really no different than Work Experience II, and assuming that the law should appropriately
address such problems, then why is a case-by-case liability regime the
appropriate means for doing so?  In
other words, if discrimination law is really a tax on harmful conduct or a redistributive
regime of some sort, then what is the benefit of administering that regime
through what – in real life – is likely to be a haphazard and imperfect
case-by-case analysis fraught with problems of proof, evidence, and the like?

That more than exhausts my limited expertise on discrimination,
which is primarily limited to organizational issues, such as compliance
and business
rationales
for diversity.  I’ll have to leave
the heavy lifting on issues like this to Pat and the others who have been engaging
these problems, including Susan Sturm, Tristin Green, Amy Wax and numerous
others (all of which are reviewed and summarized in the Bartlett piece
referenced above).