18 Pages Posted: 22 Apr 2008
In 1987, Charles Lawrence articulated an inherent flaw of the discriminatory intent requirement in equal protection jurisprudence by leveraging social science research to demonstrate that the behavior that produces racial discrimination is influenced by unconscious racial motivation. Twenty years later, the debate continues with increasing social science literature to support his position. Furthermore, other scholars and social scientists have demonstrated how unconscious bias may fuel discriminatory acts against others on the basis of gender, ethnicity and sexual orientation.
Appropriately, most of the unconscious bias research focuses on how such biases operate within the majority to oppress a minority group. They often analyze how white bias serves to stereotype or marginalize people of color or how male bias serves to stereotype or marginalize women. However, rarely does the literature explore how marginalized groups may engage in unconscious (and conscious) bias against one another, which this article argues blocks social justice efforts to combine resources and resource-coalescing coalitions that challenge oppression.
This Article does not seek to explore unconscious bias to conclude that all people in society discriminate, nor to offer some solitude to well-meaning whites (or other members of majority groups) seeking to assuage their guilt. Instead, this Article explores biases within and among subordinated groups in an attempt to offer some clarity on how subordinated groups may build coalitions and uncover how their subordinations are interrelated and dependent upon one another to uphold the power and privilege. This Article turns to social science literature to explore how an appreciation of the operation of unconscious bias among and within subordinated groups, often driven by self-interest and group preservation, presents an opportunity to unify subordinated groups by identifying how such groups interests converge with one another. This Article will briefly use an example to demonstrate how outsider interests may converge by delineating how people of color, women, and LGBTs (and those at the intersections) have a common interest in challenging the legal construction of the concept of family under welfare legislation - legislation that serves to deny life-sustaining benefits to those who fail to conform to what is perceived to be a predominately white, heterosexual, middle-class family construction.
Suggested Citation: Suggested Citation
Smith, Catherine E., Unconscious Bias and 'Outsider' Interest Convergence. Connecticut Law Review, Vol. 40, No. 4, 2008; U Denver Legal Studies Research Paper No. 08-12. Available at SSRN: https://ssrn.com/abstract=1123610