Proving unconscious bias, McDonnell Douglas, Disparate treatment, Anti-discrimination law
Sturm College of Law
Many commentators have criticized current anti-discrimination law on the grounds that it does not adequately prohibit unconscious bias in employment decisions. That claim is wrong: Unconscious bias is fully actionable, and it can generally be proved by knowledgeable employment lawyers. The idea behind unconscious bias is that well-meaning employers and supervisors, who would likely consider themselves supporters or even champions of equality, might subconsciously harbor attitudes that result in negative employment decisions for women and minorities.
Martin J. Katz, No Intent, No Foul? Unconscious Bias in Employment Decisions, 30 LEGAL TIMES 21:35 (May 21, 2007).
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