Rethinking Employment Discrimination Harms

81 Pages Posted: 13 May 2013 Last revised: 6 Sep 2021

Date Written: February 19, 2015

Abstract

While the effect of implicit bias on the mental state of potential discriminators is well-worn territory within employment discrimination scholarship, this Article examines the applicability of a previously underexplored psychological phenomenon: stereotype threat. More than a decade’s worth of social psychology research indicates that when a person is conscious of her membership in a particular group and the group is the subject of a widely recognized stereotype, that awareness can directly affect her performance of stereotype-related tasks, creating a self-fulfilling prophecy. For example, a common gender stereotype holds that women are not as good at math as their male counterparts. Thus, when asked to indicate sex before a math test, women tend to perform worse. As a result, if an employer draws attention to an employee’s protected status, that seemingly harmless act could impact the employee’s mental state and, in turn, her job performance. Despite the well-known effects of stereotype threat, this Article is the first to systematically apply that science to employment discrimination law. In so doing, it urges the law to adopt a more expansive notion of harm to better reflect the cognitive functions of the individuals who face discrimination.

Keywords: anti-discrimination, employment, harm

JEL Classification: J71

Suggested Citation

Roberts, Jessica L., Rethinking Employment Discrimination Harms (February 19, 2015). 91 Indiana Law Journal 393, Available at SSRN: https://ssrn.com/abstract=2263564 or http://dx.doi.org/10.2139/ssrn.2263564

Jessica L. Roberts (Contact Author)

University of Houston Law Center ( email )

4800 Calhoun Road
Houston, TX 77204
United States

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