Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law

Patrick S. Shin

Volume 62, Issue 1, 67-102

Recent scholarship in employment discrimination law has wrestled with the problem of unconscious bias and its implications for antidiscrimination law. This Article addresses what some might regard as a naïve question: Should actions influenced by unconscious bias be regarded as discrimination under Title VII? The question might be considered naïve because any proposal for liability based on unconscious bias would surely be unripe for present implementation, and because there is no accepted method either for detecting such bias in individual cases, or for determining whether such bias actually influenced a person’s decisionmaking. But these practical considerations provide no answer to the fundamental issue that underlies the question. Does unconsciously biased action fall within the legal concept of actionable discrimination? To reach that important issue, I devise a thought experiment that brackets practical problems of proof and squarely raises what I regard as the hard question for theorizing about unconscious discrimination. Should an employment action give rise to liability when that action was provably affected by the actor’s unconscious bias with respect to a statutorily protected classification, even when the actor consciously acted only on legitimate, nondiscriminatory reasons? The payoff of the thought experiment is not only a clearer picture of the theoretical commitments entailed by liability based on unconscious bias, but also a keener understanding of our currently prevailing notions of actionable discrimination.

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