The Discriminating Mind: Define it, Prove it

45 Pages Posted: 4 Apr 2008 Last revised: 8 Apr 2009

See all articles by Amy L. Wax

Amy L. Wax

University of Pennsylvania Carey Law School


Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect well-documented supply side disparities between groups in human capital development, qualifications, and behavior. These patterns are not most effectively addressed by focusing on unconscious processes, but rather by scrutinizing neutral practices for efficiency and social usefulness and also by attempting to eliminate underlying group differences in the ability to compete for social rewards.

Likewise, allegations of unconsciously motivated disparate treatment, which are based on the contention that race or sex plays a causal role in social outcomes, should be scrutinized for alternative, non-discriminatory explanations for observed disparities, including supply side differences between groups. In addition, some disparities attributed to unconscious bias could just as well be explained by old-fashioned statistical or rational discrimination, which is also fueled by real, average, observable differences in performance by race or sex. In general, sweeping and categorical claims of unconscious discrimination are unwarranted without specific evidence that this process is actually operating in a given case. Such evidence is hard to come by. In many cases, supporting such claims requires excluding alternative explanations - including supply side explanations for observed disparities in group success.

Keywords: unconscious discrimination, disparate treatment, disparities between groups, supply side disparities, category-neutral criteria, average differences between groups

Suggested Citation

Wax, Amy L., The Discriminating Mind: Define it, Prove it. Connecticut Law Review, Vol. 40, Pg. 979, 2008, U of Penn, Inst for Law & Econ Research Paper No. 08-10, U of Penn Law School, Public Law Research Paper No. 08-11, Available at SSRN:

Amy L. Wax (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-5638 (Phone)
215-573-2025 (Fax)

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