Antidiscrimination Law's Effects on Implicit Bias

Abstract

It is by now commonplace to observe that bias on the basis of race and other traits in American society today is primarily unconscious, or implicit, rather than conscious in nature. It is equally commonplace to critique existing antidiscrimination law for its failure to create significant liability for behavior stemming from such implicit bias. Despite this broad condemnation of existing antidiscrimination law, essentially no progress has been made on efforts to reform the law in response to the problem of implicit bias. The present paper suggests, however, that an important piece of the relationship between antidiscrimination law and implicit bias has been overlooked in the existing debate. The missing piece is the way in which current antidiscrimination law - although it concededly does not aim at implicitly biased behavior in a significant way - nonetheless tends to have the effect, in a wide range of respects, of reducing implicit bias. In this account of antidiscrimination law, the existing legal regime occupies a far more positive, although admittedly still imperfect, relationship with implicit bias. As explored in the paper, in diverse areas ranging from employment law to education law to the law governing various types of voluntary organizations, current antidiscrimination doctrines are likely to shape and affect the level of people's implicit bias in important ways. Understanding these previously ignored effects of current antidiscrimination law allows us to appreciate what is valuable, good, and worth celebrating about this law, notwithstanding its undeniable shortcomings.

Keywords: implicit bias, antidiscrimination law

JEL Classification: J71, J78