Blogs > Liberty and Power > The New Original Sin: "Unconscious Bias" and the Courts

May 15, 2006 6:36 pm

The New Original Sin: "Unconscious Bias" and the Courts

Glenn Singeton, who has built a thriving financial empire as a race"expert" via lucrative contracts at Bellevue Community College (secured with the unwitting help of Michelle Malkin), the Cherry Creek, Colorado school district, and many others, is not the only successful diversity entrepreneur.

Many academics are creatively using the courts for similar goals by testifying as legal experts on"unconscious bias." They are showing that whole new careers can be built by trying to prove a negative. Here is the latest from Business Week on this disturbing trend:

Winning a big employment lawsuit these days often requires a bit of magic. After all, companies are awash in diversity training, equal opportunity policies, and 800 numbers aimed at rooting out bias. Managers have been well trained to keep their discriminatory thoughts to themselves, edit all hints of racism and sexism out of e-mail, and couch pay and promotion decisions in legally defensible language. So how do plaintiffs' lawyers prove their cases?

Enter the magician. Sociologist William T. Bielby is the leading courtroom proponent of a simple but powerful theory:"unconscious bias." He contends that white men will inevitably slight women and minorities because they just can't help themselves. So he tries to convince judges that no evidence of overt discrimination -- no smoking gun memo, for instance -- is needed to prove a case. As Allen G. King, an employment defense attorney at the Dallas office of Littler Mendelson, puts it:"I just have to leave you to your own devices, and because you are a white male," you will discriminate.

Hat tip King Banaian at SCSU Scholars.

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Sudha Shenoy - 5/16/2006

No wonder Hayek said legislation is as fraught with consequences as gunpowder. It is statute which makes possible all this dangerous nonsense. None of this is possible under common law -- there you have to prove damage -- serious monetary damage. Common law develops through daily experience & the jury's common sense -- addressed to _substantive_ issues, causing definite _practical_ problems. Only under legislation could such vapour as the above come before the courts.