employment discrimination, implicit discrimination, stereotyping, norm internalizaation
Civil Rights and Discrimination | Labor and Employment Law | Law | Law and Society
Discrimination in today’s workplace is largely implicit, making it ambiguous and often very difficult to prove. Employment discrimination scholars have proposed reforms of Title VII to make implicit discrimination easier to establish in court and to expand the kinds of situations to which liability attaches. The reform proposals reflect a broad consensus that strong legal norms are crucial to addressing the problem. Yet it is mistaken to assume that strengthening plaintiffs’ hands in implicit discrimination cases will necessarily achieve the long-term goal of reducing its occurrence. This Article brings together several strands of social science research showing that (1) implicit bias is not only invisible and largely unintended, but not readily reachable through legal coercion; (2) people whose motivation to act in nondiscriminatory ways is based on an internal commitment to nondiscriminatory norms—or “good intentions”—are less likely to engage in stereotyping of others than people who feel pressured by the law; (3) people internalize nondiscrimination values best when they feel a sense of autonomy, competence, and relatedness; (4) the conditions that support these characteristics in the workplace include strong, unambiguous norms, trust, teamwork, leadership, positive example, and opportunities to grow and advance; and (5) excessive legal control and pressure undermine people’s sense of autonomy, competence, and relatedness and thus their commitment to nondiscrimination norms. When legal pressure becomes overkill is not a matter of exact science, and is complicated by differences among people and work-place cultures. Still, before fashioning further legal tools that assume that more coercion is the answer to implicit discrimination, this Article suggests that more attention be given to the negative impact of such tools and to alternative measures that may better motivate people’s adherence to nondiscrimination norms.
Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Virginia Law Review 1893-1972 (2009).