Whenever people get into a debate about the need (or lack thereof) for anti-discrimination laws I am always fascinated.
While I firmly believe that anti-discrimination statutes are incredibly important the fact that some people disagree with me is not surprising at all.
However, what I find fascinating are the reasons people give for disagreeing with me.
What I have often found is that, while people in the abstract are against discrimination, and agree steps should be taken to oppose it, they tend to refuse to accept the notion that, however high-minded they may be, they too are susceptible to subconscious biases.
The result is a vague resistance to discrimination, but with an equally vague resistance to some of the measures used to fight subconscious biases that result in discrimination - including disparate impact civil rights statutes.
These statutes provide that, even where there is no intentional discrimination, a protected group can still be subjected to discrimination because a policy has a disparate impact on that group -- and where the defendant cannot qualify for an exception -- for example in the employment law context where that policy is not job related and/or consistent with business necessity -- the policy will be found to be discriminatory.
These disparate impact statutes have been one of the best vehicles for addressing subconscious biases because they provide a methodology to remove the policies that may (often inadvertently) exacerbate the effects of such biases.
To help underscore the importance of the above point I will provide a series of posts that address the application of subconscious biases in a variety of employment and other contexts.
The first, although not strictly an employment matter, is what I think was an ingenious demonstration of this issue.
A study sought to determine how professor response rates to emails from students varied based on the gender and ethnicity of the student. The result, unfortunately, unsurprisingly, was that professors were significantly more likely to ignore emails from female students and/or students of color and respond to emails from white males (based on the usual gender and/or racial association of the name):
"A group of researchers ran this interesting field experiment. They emailed more than 6,500 professors at the top 250 schools pretending to be the students. And they wrote letters saying, I really admire your work. Would you have some time to meet? The letters to the faculty were all identical, but the names of the students were all different."
. . .
[W]hat they found was there were very large disparities. Women and minorities [were] systematically less likely to get responses from the professors and also less likely to get positive responses from the professors. Now remember, these are top faculty at the top schools in the United States and the letters were all impeccably written." (link)
In short, "[w]hite men were more likely than women and minorities to receive a reply in every discipline except the fine arts, where the bias was reversed.” (link)
Business schools should take particular notice of this study:
"The business field showed the greatest disparity — 87 percent of white men received a response; compare this to only 67 percent of women and minorities who got a reply. Other disciplines such as computer science, engineering, and math also showed a significant bias against female and minority students." (link)
One of the most interesting aspects of the study is that Asian students experienced the greatest negative bias:
Previous studies of academia have shown a positive trend with Asians in higher education institutions. Not this time. “Among private university faculty the response rate for white men was 29 percentage points higher than for Chinese women — the greatest disparity observed . . . .” (link)
The researchers also found that "the greater the professor's salary, the greater the difference in response rate between white men and minority students." (link) Indeed, “[f]or every 13,000 increase in salary, . . . [there was a] drop of 5 percentage points in the response rate when compared to Caucasian males.” (link)
This study is a good illustration of why it is important for tools such as the civil rights statutes, and specifically their disparate impact provisions, are such important aspects of any effort to continue to address the effects of subconscious biases.
At least for now, the substantive equality, and ability to equally access opportunity, for all Americans, other than white males, depends on them.