ACSBlog: The Blog of the American Constitution Society

In an article forthcoming in the California Law Review, Professors Cass Sunstein & Christine Jolls suggest that the law must rise to meet the challenge of unconscious discrimintion. As they explain, the premise of modern anti-discrimination law is that only "consciously biased decisionmaking" may be regulated. In other words, a person who sets out to be a racist is subject to government sanction, but a person who unintentionally favors persons of one race over those of another is beyond the law's reach.

Sunstein and Jolls argue that this premise renders the law inadequate to address real world bias, and that the law is becoming increasingly inadequate as it focuses more and more on the intentions of potential defendants:

[M]ost courts have now made explicit that any facially neutral basis for an employer's decision will, if honestly although mistakenly or foolishly held, suffice to defeat a claim of intentional discrimination under Title VII. As Krieger and Fiske powerfully demonstrate, an "honest" concern about an employee may very often be both "honest" and (unbeknownst to the decisionmaker) entirely a product of the employee's status as an African-American worker.

Rather than formalistically examining the conscious intent of the defendant, Sunstein & Jolls assert that lawmakers should instead "pay close attention to the best available evidence about people's actual behavior," and reshape the law to address unconscious as well as conscious bias.

(hat tip: Feminist Law Profs)