Rethinking Employment Discrimination Harms

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