(How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality

During the past several years, psychological research on unconscious racial bias has grabbed headlines, as well as the attention of legal scholars. The most well-known test of unconscious bias is the Implicit Association Test (IAT), a sophisticated and methodologically rigorous computer-administered measure that has been taken by millions of people, and featured in major print and broadcast media. Its proponents contend that the IAT reveals widespread unconscious bias against African-Americans, even among individuals who believe themselves to be free of racial bias. In fact, however, the findings of the IAT are ambiguous. The test could just as plausibly be thought to measure racial bias that is simply covert, known to oneself yet intentionally concealed from researchers. On this interpretation, the IAT reveals not that individuals are more biased than they realize, but that they are more biased than they want others to know. The characterization of the IAT as a measure of unconscious bias has practically eclipsed this plausible alternative interpretation. Why? One possibility is that unconscious bias, even if not incontrovertibly demonstrated by the IAT, warrants attention because it poses a unique challenge for antidiscrimination doctrine. But this explanation for the ascendance of the unconscious bias discourse is wrong. The prospect of unconscious racial bias poses no unique challenges for antidiscrimination doctrine. Antidiscrimination law grapples as well, or as poorly, with unconscious bias as with covert bias. Neither statutory nor constitutional doctrine turns on the distinction between the two. The better explanation for the ascendance of the unconscious bias discourse is that assertions of widespread unconscious bias are more politically palatable than parallel claims about covert bias. The invocation of unconscious bias levels neither accusation nor blame, so much as it identifies a quasi-medical ailment that distorts thinking and behavior. People may be willing to acknowledge the possibility of unconscious bias within themselves, even as they would vigorously deny harboring conscious bias. The unconscious bias claim thus facilitates a consensus that the race problem persists. Despite its ostensible political benefits, the unconscious bias discourse is as likely to subvert as to further the cause of racial justice. Racial injustice inheres in the entrenched substantive racial inequalities that pervade our society. These disparities are not primarily a consequence of contemporary racial bias. Thus, the goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias. Yet, the rhetoric of unconscious bias is so compelling that people are likely to accept it as the goal of racial reform and, consequently, to push the theory in directions that siphon energy away from problems of substantive inequality, and which may be undesirable in their own right. The unconscious bias discourse reinforces a misguided preoccupation with mental state, and perpetuates an obsession with antidiscrimination law, rather than policy reform, as a means of realizing racial justice goals. If the goal is to eliminate substantive inequalities, then the task of racial justice advocates should be to explain forthrightly why they are objectionable and how to address them. ∗ Jackson Eli Reynolds Professor of Law, Stanford Law School ∗∗ George E. Osborne Professor of Law, Stanford Law School Unconscious Racial Bias Stanford Law School 2 INTRODUCTION 3 PART I: EMPIRICAL AMBIGUITY 6 A. THE MEASUREMENT OF IMPLICIT BIAS 6 B. THE NECESSITY OF MEASURING CONSCIOUS BIAS 9 C. THE SOCIAL DESIRABILITY PROBLEM 11 D. RE-CHARACTERIZING THE IAT 14 PART II: ANTIDISCRIMINATION DOCTRINE 18 A. STATUTORY LAW: TITLE VII 18 1. Single Motive Cases: Formalism, Realism and Employment at Will 19 2. Mixed Motive Cases: Causation and Duty 25 3. The Honest Belief Rule 29 B. CONSTITUTIONAL LAW: EQUAL PROTECTION 32 C. DISPARATE IMPACT, AFFIRMATIVE ACTION AND THE BURDEN OF PROOF 40 PART III: POLITICAL APPEAL 42 A. THE STIGMA OF RACISM 42 B. THE DENIAL OF DISCRIMINATION 43 C. THE DENIAL OF BIAS 45 D. THE HISTORICAL NARRATIVE 46 PART IV. AGAINST BIAS 48 A. THE IAT AND THE RISK OF FAILURE 48 1. Empirical Uncertainty 48 2. The Scholarly Role 50 B. THE COSTS OF SUCCESS 50 1. Goal Distortion: Confusion of Means and Ends 51 2. Undesirable Outgrowths 53 CONCLUSION 57 Unconscious Racial Bias Stanford Law School