Subjective Decisionmaking and Unconscious Discrimination

Abstract

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying about its reasons for a particular decision. The Supreme Court's recent decision in Desert Palace v. Costa, 539 U.S. 90 (2004) eliminates any argument that employer mendacity is a prerequisite for plaintiff success under Title VII. By recognizing that an employer may honestly believe the reasons it offers for a decision, but may nonetheless have been motivated by racial or gender bias in making the decision, the law opens up significant potential for challenging instances of unconscious discrimination. Further, the article demonstrates that plaintiffs can - and do - challenge unconscious bias both in individual claims and in class litigation through arguments that an employer's decisionmaking processes are excessively subjective.

Keywords: discrimination, decisionmaking

JEL Classification: J70, J71, J78, J79, K40