Abstract

http://ssrn.com/abstract=2079759
 


 



Implicit Bias in Employment Discrimination Litigation


Nancy Gertner


affiliation not provided to SSRN

Melissa Hart


University of Colorado Law School

2012

Implicit Racial Bias Across the Law, Cambridge University Press, 2012
U of Colorado Law Legal Studies Research Paper No. 12-07

Abstract:     
Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.

Number of Pages in PDF File: 28

Keywords: Employment Discrimination, judicial decisionmaking, implicit bias, discretion

JEL Classification: J71, J78, J70, K40, K41

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Date posted: June 7, 2012 ; Last revised: June 20, 2012

Suggested Citation

Gertner, Nancy and Hart, Melissa, Implicit Bias in Employment Discrimination Litigation (2012). Implicit Racial Bias Across the Law, Cambridge University Press, 2012; U of Colorado Law Legal Studies Research Paper No. 12-07. Available at SSRN: http://ssrn.com/abstract=2079759

Contact Information

Nancy Gertner (Contact Author)
affiliation not provided to SSRN ( email )
Melissa Hart
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States
303-735-6344 (Phone)
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