Antidiscrimination Law and the Perils of Mindreading

Abstract:     
Recent legal scholarship challenges the default psychological assumption in antidiscrimination law that discrimination is a function of psychological processes under the conscious control of the discriminator, and replaces it with the assumption that discrimination is the result of unconscious, or implicit, psychological processes that operate automatically, beyond conscious control. However, this challenge is only as persuasive as the research on which it is predicated, and we document that this research fails to satisfy key scientific tests of validity. We conclude that implicit prejudice research should be accepted as neither legislative authority nor litigation evidence until there is more: (1) rigorous investigation of the error rates of the new implicit measures of prejudice (and of how investigators balance Type I errors of false accusations against Type II errors of failing to identify prejudice); (2) thorough analysis of how well implicit measures of prejudice predict discriminatory behavior under realistic workplace conditions; (3) open debate about the societal consequences of setting thresholds of proof for calling people prejudiced so low that the vast majority of the population qualifies as prejudiced.

Number of Pages in PDF File: 100

Keywords: implicit bias, implicit prejudice, unconscious bias, law and social science, law and psychology

JEL Classification: J70, J71

Accepted Paper Series