Supply Side or Discrimination? Assessing the Role of Unconscious Bias

An increasingly prominent theme in legal scholarship is that unconscious bias is an important contributor to social disparities by race and gender. The intensive focus on inadvertent motives is grounded in laboratory observations that purport to demonstrate that people’s split-second reactions are influenced by group identity. Such responses, it is argued, routinely fuel discriminatory conduct against women and minorities. It follows that, where disparities exist, they can usually be traced back to the operation of biased psychological processes of which people are largely unaware. This Article examines these arguments by considering, and critiquing, the claimed link between unconscious bias and social disadvantage. The discussion begins, in Part II, with the recent case of Wal-Mart Stores, Inc. v. Dukes,1 in which the plaintiffs argued that Wal-Mart’s treatment of its female employees was uniformly, even if inadvertently, contaminated by gender stereotypes. In examining this contention, Part II elaborates on the distinction between risk and discrimination—between the potential for gender or other forbidden factors to influence decisions versus whether those factors are actually taken into account. Part III reviews, and finds wanting, the scientific evidence that claims to attribute real-world discriminatory treatment, and the resulting adverse outcomes, to unconsciously biased motives. Part IV.A discusses the general difficulties of demonstrating discrimination, which requires distinguishing between unlawful motives (conscious or unconscious) and other factors as a cause of unfavorable treatment. Part IV.B discusses the pervasive legal assumption that outcome disparities reflect discriminatory treatment and the documented intergroup differences that undermine that approach. Part V looks at measures proposed to address inadvertent bias, and notes the lack of evidence that any of them will have the intended effect of diminishing unlawful discrimination. Parts VI and VII argue that, given the existence of significant “supply side” factors that explain persistent intergroup differences, it is unlikely that unconscious discrimination is an important source of social disadvantage, especially for race. The discussion then concludes with the suggestion that the roots of