Implicit Biases: An argument for a new view

What follows is a slightly modified excerpt from my article, “Using Mediation to Remedy Civil Rights Violations When the Defendant Is Not an Intentional Perpetrator: The Problems of Unconscious Disparate Treatment and Unjustified Disparate Impacts” (24 Hamline J. Pub. L. & Pol'y 225 (2003).

The first important strides made against racial discrimination confronted the overt, intentional bigotry of zealots. In the struggle against racism, these zealots were the first to be stripped of their legitimacy. Overt acts of racism fell victim to public disapproval and legal illegitimacy. Openly racist actors were the easy-to-identify, easy-to-vilify perpetrators of discrimination. These actors and the policies they implemented became the public face of the racist establishment and their conversion or removal from power became the goal of partisans of equality. This paradigm created the perpetrator perspective of how racism manifests itself in social life. The so-called “perpetrator perspective” characterizes

“racial discrimination not as conditions but as actions, or series of actions, inflicted on the victim by the perpetrator…. Its principal task has been to select from the maze of human behaviors those particular practices that violate the principle [of nondiscrimination], outlaw the identified practices, and neutralize their specific effects.” (Alan David Freeman “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine”62 MINN. L. REV. 1049 reprinted in Critical Race Theory.)

As Freeman has pointed out, because the antidiscrimination ethic is mired in the perpetrator view of discrimination, it can do little to advance the creation of a discrimination-free society or equal opportunity. The perpetrator model of discrimination obliterates the subtle difference between conscious and unconscious discrimination. The difference is crucial for debunking the notion that all discriminators act intentionally. The perpetrator model of discrimination is an outmoded, inaccurate measure of modern discrimination. As such, our dependence upon it worsens race relations and sets our course in the elimination of discrimination in retrograde.

The perpetrator perspective has several faults. Two of those shortcomings are particularly significant. First, because the perpetrator model views discrimination as an aberration rather than an integral part of American life, the model is unconnected to history. The perpetrator model presumes that we have now arrived in a place where race is of no consequence. This alienates those minorities whose lived experience is that race is still a significant issue in their everyday lives. The model presumes that a “good” society was created the moment discrimination became a judicially cognizable wrong. By ignoring persistent conditions which reflect historical and contemporary discrimination against women and minorities, the model obscures and thus legitimates those conditions. If discrimination no longer exists, then conditions which are the product of centuries of both subtle and overt discrimination such as residential segregation, poor schools, and lagging economic development, may easily be recharacterized as the result of the personal failings of the victims.

The second failing of the perpetrator view is that the model gives birth to the ugly stigma of being a discriminator which anyone accused of racism will understandably want to avoid. The perpetrator model labels anyone who engages in discrimination as a sinner who should be frowned upon by the enlightened masses. However, the norms of racialized living are not so purged from American culture that anyone living in this country can escape having racially discriminatory ideas permeate their psyche. Linda Krieger’s breakthrough work on the ways in which cognitive dissonance affects modern discrimination sheds special light on this contention (Linda Krieger, “The Content of Our Categories: A Cognitive Bias Approach To Discrimination and Equal Employment Opportunity” 47 STNLR 1161). She presents strong evidence from social psychologists that stereotyping along the lines of salient characteristics is an inherent and essential part of being human. Because American society has viewed race as a particularly salient characteristic over the course of its history, today racial stereotyping is, while not socially desirable, cognitively inevitable. Though unconscious stereotyping is a natural process of negotiating a world with a multitude of stimuli for the mind to process, it has dire consequences for race relations generally and for equal employment opportunities particularly.

Maintaining our allegiance to the perpetrator model of discrimination prevents us from eliminating barriers to equal opportunity because of an over-reliance on the belief that racist outcomes are linked to consciously racist actors. Relying on methods to eliminate the contemporary and historical vestiges of discrimination that require the identification of a conscious wrong-doer will continue to miss the mark, and fall short of equal opportunity.