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This Article seeks to examine how the law should respond to unconscious or automatic forms of cognitive bias that are thought to produce less favorable treatment of employees in the workplace because of race or sex ("unconscious disparate treatment"). Assuming that inadvertent bias is a form of workplace "accident," and using familiar principles of accident law and economic analysis, the Article concludes that extending the framework created by existing anti-discrimination laws to cover disparate treatment that stems from unconscious group-based biases is not a good idea because it is unlikely to serve the principal goals of a liability scheme (deterrence, compensation, insurance) in a cost effective manner. The Article employs insights from research in cognitive psychology to argue that holding employers liable for unconscious discrimination will not effectively deter that conduct because firms do not know, and cannot discover, how to take precautions against the unconscious biases of their agents. The inability to develop an effective program to purge unconscious bias will tempt firms to reduce the number of adverse actions against protected employees in ways that do not necessarily diminish the influence of inadvertent bias on the evaluation process -- that is, through affirmative action. Moreover, there are also reasons to believe that employees, rather than employers, are the "cheapest cost avoiders" for unconscious bias. This argues for leaving the costs of such bias where they fall. Holding employers liable for unconscious bias will also do little to advance the cause of fair and accurate compensation for victims. Because unconscious bias is probably subtle and only intermittently inflicts tangible harms, patterns of compensation to individuals will often be haphazard and bear little relation to actual victimization. Any scheme of compensation for inadvertent bias will come to mimic the effects of affirmative action programs, which can be more efficiently implemented by other means. The Article concludes that the law should attack unconscious bias in the workplace in ways other than imposing liability on employers or should leave solutions to the play of extralegal forces.

Publication Title

Indiana Law Journal

Publication Citation

47 Ind. L. J. 1129 (1999)