Recent employment discrimination law has focused on proposals to make it easier for plaintiffs to win Title VII cases when the circumstances underlying their claims are ambiguous. While some of the proposals are sound, they fail to take into account the costs of further legal presumptions and controls on people’s commitment to nondiscrimination goals – or what the article calls “good intentions.” Without such attention, reform efforts will gravitate toward strategies that (1) short-circuit the fundamental causation requirements of Title VII, increasing the risk of false positives and associated anxieties, (2) create a surveillance mentality, and (3) reduce people’s sense of autonomy, competence, and connectedness. The article brings together several strands of social science research to show that these effects weaken workplace trust, legitimacy, and acceptance of nondiscrimination norms. Although the increased pressure may produce compliance in the short term, the article contends that it may also undermine the affirmative commitment necessary over the long term to change the attitudes and beliefs that lead to present-day discrimination. Continued positive change requires not only strong nondiscrimination norms, but also conditions enabling people to internalize those norms. What promotes, or defeats, norm internalization is not an exact science, and is complicated by differences in individual and workplace circumstances. The article reviews the relevant social science literature and evaluates legal and workplace strategies for reducing workplace discrimination in light of it.
While writing the article to which Professors Mitchell and Bielby have published responses, I was mindful of the many ways in which the article could be misinterpreted. In taking issue with the assumption that legal controls work in a direct, linear manner to deter discrimination, I thought I might be misunderstood to say that people are not responsive to incentives. In worrying about how legal sanctions exert external pressure that may crowd out the inclination of well-intentioned people to self-monitor for bias, I feared that the article would be read mistakenly to oppose strong and appropriate legal rules against discrimination. In arguing that we should take people’s good intentions not to discriminate as a useful starting point for better workplace policies, rather than as the cynical exhibition of people’s self-delusion, I anticipated that the article would be dismissed as a fanciful and naïve denial of the existence of race and gender bias. In arguing that well-intentioned people can overcome their natural tendencies to discriminate, I was concerned about appearing to claim that good intentions are sufficient to end discrimination.
In the case of the responses by Professor Mitchell and Professor Bielby, these fears were unwarranted. The responses engage the article’s actual objectives—to clarify the state of empirical knowledge about unconscious workplace bias and to evaluate proposed approaches to reducing it. Professors Mitchell and Bielby, both leading figures in research about workplace bias, bring their considerable expertise to bear on evaluating and expanding the themes of the article. They each agree that legal scholars have ignored some of the relevant psychological literature and interpreted the research on which they have drawn in a shallow way. They also correctly identify my concerns about the overuse of legal coercion to reduce workplace bias, and concur that more legal controls are not likely be effective in reducing implicit bias.
Beyond these areas of agreement, there are differences in emphasis and enthusiasm.