A Legal Framework for Uncovering Implicit Bias

Abstract

Actors’ implicit biases impact the law in many areas, ranging from employment discrimination to criminal law. Legal scholars are rightly concerned with the effects of implicit bias, and have suggested myriad ways of counteracting it. However, many employment discrimination scholars are pessimistic about the current law’s potential to curtail the effect of implicit bias. There has been very little written about how the actual framework of an employment discrimination suit can mitigate such bias. This paper fills that gap by suggesting such a framework and exploring the importance of the framework at the summary judgment stage of litigation. This paper will examine the way in which the framework used by courts in individual disparate treatment employment discrimination cases can work indirectly to force employers to reflect upon their motives for a particular decision. I advocate for the use of the motivating factor framework at the summary judgment phase; using this analysis, as opposed to the single factor analysis encapsulated in McDonnell Douglas, will ultimately change employers’ decision-making behavior. Through a review of social psychology literature on decision-making and implicit bias, as well as a comparative case analysis of the differing frameworks used to analyze individual disparate treatment cases, I demonstrate the power that the motivating factor framework holds to indirectly mitigate the effects of implicit bias in workplace decisions.

Keywords: employment law, employment discrimination, human cognition, implicit bias, motivating factor