90 Pages Posted: 17 Mar 2008 Last revised: 21 Mar 2008
This Article argues that outsiders and insiders tend to perceive allegations of discrimination through fundamentally different psychological frameworks. These previously unrecognized differences have profound legal consequences. A workplace may be spatially integrated and yet employees who work side by side may perceive an allegation of discrimination through very different lenses because of their disparate racial and gender identities. Most implicit bias legal scholarship has focused on the cognitive processes of insiders (whites and men) in assessing and evaluating outsiders (people of color and women). This Article opens a new field of legal scholarship, and complements the implicit bias literature, by drawing on empirical studies to explicate the cognitive processes of outsiders in interpreting potential incidents of discrimination. Studies show that blacks and whites are likely to differ substantially in how they conceive of and define discrimination. White people tend to believe that widespread expressions of a commitment to racial equality and the reduction in overt expressions of racist attitudes reflect reductions in racism, whereas black people tend to believe that racist attitudes and behaviors have simply become more difficult to detect. While many whites expect evidence of discrimination to be explicit, and assume that people are colorblind when such evidence is lacking, many blacks perceive bias to be prevalent and primarily implicit. Studies have also revealed that men and women differ significantly in assessing incidents of sexual harassment. Differences in perception have profound implications for how our judicial machinery, which consists predominantly of white male judges, resolves antidiscrimination claims. Judges are likely to impose their own contingent conceptions of discrimination, with little or no awareness of the perceptual limitations shaping their judgments. This Article explores reforms in the judicial system and in workplaces that could help sensitize both insiders and outsiders to the other perspective and break down the rigidity in these clashing mindsets.
Keywords: discrimination, perception of discrimination, racial bias, implicit bias literature, judicial conceptions of discrimination, judicial reform
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