Sturm College of Law
Proving unconscious bias, McDonnell Douglas, Disparate treatment, Anti-discrimination 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.
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Martin J. Katz, No Intent, No Foul? Unconscious Bias in Employment Decisions, 30 LEGAL TIMES 21:35 (May 21, 2007).