Linda Hamilton Krieger

Implicit Bias: Scientific Foundations

The assumption that human behavior is largely under conscious con trol has taken a theoretical battering in recent years. Although this assault in some ways resembles the previous centurys Freudian revolution, there are important differences between the two. Freuds views of unconscious mechanisms were embedded in a theory that never achieved conclusive support among scientists, despite many empirical theory-testing efforts in the middle third of the twentieth century.1 Consequently, most psycholo gists have abandoned Freuds psychoanalytic theory of unconscious mental processes. Theoretical conceptions of conscious control over human behavior were strongly re-established in the last third of the twentieth century, but the dominance of such views has been crumbling during the past two dec ades. Unlike the Freudian revolution, however, the new science of

The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity

Title VIIs disparate treatment model of discrimination is premised on the notion that intergroup bias is motivational in origin. This premise, in turn, is based on a number of assumptions regarding the nature of human inference and the respective roles played by cognition and motivation in social judgment and decisionmaking. Applying insights from cognitive psychology, Professor Krieger examines the assumptions about human inference embedded in current disparate treatment theory and questions the premise that discrimination necessarily manifests intent or motive. She suggests that a large number of biased employment decisions result not from discriminatory motivation, as current legal models presume, but from a variety of unintentional categorizationrelated judgment errors characterizing normal human cognitive functioning. Because of the lack offit between the present disparate treatment model and the phenomenon it purports to represent, courts and litigants are presented with a confising array of increasingly ill-defined and questionably premised analytical paradigms. Worse, as currently constructed, it may be exacerbating intergroup tensions and inflating both social and financial adjudication costs. Searching for solutions Professor Krieger explores the legal and policy implications of a cognitive process approach to discrimination and equal employment opportunity and evaluates a variety of modifications to existing equal employment opportunity law.

When Organizations Rule: Judicial Deference to Institutionalized Employment Structures

This article offers a theoretical and empirical analysis of legal endogeneity—a powerful process through which institutionalized organizational structures influence judicial conceptions of compliance with antidiscrimination law. It finds that organizational structures (e.g., grievance and evaluation procedures, antiharassment policies) become symbolic indicators of rational governance and compliance with antidiscrimination laws, first within organizations, but eventually in the judicial realm as well. Lawyers and judges tend to infer nondiscrimination from the mere presence of those structures. Judges increasingly defer to organizational structures in their opinions, ultimately inferring nondiscrimination from their presence. Legal endogeneity theory is tested by analyzing a random sample of 1,024 federal employment discrimination opinions (1965–99) and is found to have increased over time. Judicial deference is most likely when plaintiffs lack clout and when the legal theories require judges to rule on unobservable organizational attributes. The authors argue that legal endogeneity weakens the impact of law when organizational structures are viewed as indicators of legal compliance even in the face of discriminatory actions.

Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment

Although they serve different social functions and employ different methods and tools, both law and the empirical social sciences need, use, and produce theories of human behavior. But their respective relationships to these theories differ in significant ways, and for this reason, law and social science often stand in tension with each other when they meet in the courtroom or the case reporter. For its part, law needs, uses, and produces theories of human behavior when judges elaborate constitutional or common law doctrines or interpret ambiguous statutory provisions that implicate human motivation, subjective experience, or choice. Legal actors (judges, jurors, administrative fact finders, dispute handlers, and disputants) also use behavioral theories when they evaluate, litigate, or adjudicate specific disputes, as they attempt, for example, to attribute causation, assess witness credibility, or determine

Civil Rights Perestroika: Intergroup Relations After Affirmative Action.

In this Article, Professor Krieger examines the implications of social cognition and social identity theory for the debate over affirmative action. In Part I, she explores the extent to which insights from those fields support the claim that affirmative action preferences exacerbate intergroup tensions and perpetuate certain subtle forms of intergroup bias. Finding qualified support for that view in both theoretical models and empirical evidence, Part I concludes that at least certain preferential forms of affirmative action may injure intergroup relations in a variety of troubling ways. Extending the analysis in Part II, Professor Krieger inquires whether, absent preferential forms of affirmative action, remaining legal and policy tools will suffice to control discrimination and prevent the further segregation of American society. Part II concludes that these remaining tools, which include a colorblindness model of nondiscrimination, reliance on an objective concept of merit, and the use of individual disparate treatment adjudication as a primary law enforcement tool, are unequal to the task. The misplaced confidence in these tools often found among affirmative action opponents derives, Krieger suggests, from a misunderstanding of the nature and sources of intergroup bias, from a failure to recognize its subtlety and tendency to persist over time, and from over-reliance on limited adjudicatory and regulatory approaches to address what is fundamentally a complex cultural problem. Accordingly, Professor Krieger argues that we are not yet ready to abandon preferential forms of affirmative action for the simple reason that we have nothing adequate with which to replace them. Unless more inclusive jurisprudential models of intergroup bias and new approaches to reducing such bias are developed, the problems of discrimination and inequality of opportunity can be expected to worsen in a post-affirmative action environment. In her Conclusion, Krieger articulates a set of first principles and constructs a general conceptual foundation for the future development of such a broadened view.