No Intent , No Foul ?

Many commentators have criticized current anti-discrimination law on the grounds that it does not adequately prohibit unconscious bias in employment decisions. That claim is wrong: Unconscious bias is fully actionable, and it can generally be proved by knowledgeable employment lawyers. The idea behind unconscious bias is that well-meaning employers and supervisors, who would likely consider themselves supporters or even champions of equality, might subconsciously harbor attitudes that result in negative employment decisions for women and minorities. For example, an employer might consciously see himself as strongly egalitarian, believing that men and women are equally qualified and equally dedicated. He might even pass a lie detector test on this question. But subconsciously, he might see women as more dedicated to their families than to their jobs. In making a hiring or promotion decision, he might act based upon this unconscious bias—thus reducing employment opportunity for women. Most psychologists agree that unconscious bias is likely the most prevalent form of discrimination in today’s workplace. So the question is whether modern anti-discrimination law is up to the task of dealing with this type of bias. Many commentators have charged that current law falls short in this respect, that it is incapable of addressing unconscious bias either because the law does not prohibit unconscious bias or because unconscious bias is too difficult to prove. These critics are, for the most part, wrong. Unconscious discrimination is actionable, and though establishing its existence poses certain challenges, these problems of proof are often overstated.