April 24, 2017 Articles

Round Peg in a Square Hole: Implicit Bias Research and Employment Law

Implicit bias is a fascinating social-science topic, but may have limited application to employment-discrimination law.

By Jeff Barnes and Ehsan Tabesh – April 24, 2017

Despite a decline in overt discrimination in the workplace, some social scientists assert that discrimination in the workplace persists because our unconscious biases and stereotypes negatively influence employment decisions.

The term “implicit bias” refers to the role unconscious attitudes and stereotypes play in decision-making. According to social-psychology research, implicit bias stems from a natural survival instinct. To filter and process the overwhelming amount of information we encounter in our daily lives, our brains evolved to take mental shortcuts that allow us to make rapid decisions about safety, essential life functions, and people.

Studies show, however, that taking these unconscious mental shortcuts in the workplace may lead to discriminatory employment decisions. For example, in a 2004 study, economists from MIT and the University of Chicago distributed 5,000 resumes to 1,250 employers. Bertrand & Mullainathan,Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,The American Economic Review, Vol. 94, No. 4. (Sept. 2004). The researchers assigned stereotypically white and African American names to otherwise identical resumes. Résumés with stereotypically white names led to 50 percent more callbacks than resumes with stereotypically African American names. A 2012 study found that science professors at research universities rated applicants for a manager position more favorably and offered a higher starting salary if the name on the application was male. Moss-Racusin, Dovidio, Brescoll, Graham, & Handelsman, “Science Faculty’s Subtle Gender Biases Favor Male Students,” PNAS, Vol. 109, No. 41 (July 2012).

While implicit-bias research may be useful in identifying and understanding less overt forms of discrimination in the workplace, the theory appears to be incompatible with the two existing frameworks for proving employment discrimination: disparate treatment and disparate impact.

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