Implicit Bias in the Law

Implicit Bias touches all areas of law in a multitude of ways.  Below is a small selection of areas of law where implicit bias has an impact.

Anti-Discrimination laws are meant to thwart discrimination in housing, yet implicit biases impact property and land use by maintaining "spatial colorlines" throughout the country.  Sarah Schindler outlines a few examples of the impact of explicit or perhaps implicit bias in land use.

Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods. 2

Other examples include realtors not telling minority families about properties available in predominantly white neighborhoods, or who provide less assistance or information to non-white clients. 3  As Anderson and Plaut conclude, "whatever the underlying causes of implicit bias may prove to be, its existence provides an additional layer of insight into why housing inequality and segregation persist despite the dismantling of an express racial order in American property law." 1

For further information, see: 

1. Michelle Wilde Anderson & Victoria C. Plaut, Property Law: Implicit Bias and the Resilience of Spatial Colorlines, in IMPLICIT RACIAL BIAS ACROSS THE LAW 25 (Justin D. Levinson & Robert J. Smith eds., 2012).
2. Sarah Schindler, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment, 124 Yale L.J. 1934 (2015)
3. Rachel D. Godsil & James S. Freeman, Race, Ethnicity, and Place Identity: Implicit Bias and Competing Belief Systems, 37 U. Haw. L. Rev. 313 (2015)

Title VII of the Civil Rights Act of 1964 forbids an employer from discriminating against an individual with “respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 1  (42 U.S.C. § 2000e-2(a)(1)).  Yet, nearly 36,000 charges of race discrimination were filed with the Equal Employment Opportunity Commission (EEOC) in 2010. 2    Workplace discrimination, perhaps more than any other area, includes a wider variety of implicit biases, such as ethnic biases, gender and gender identity bias, sexual preference biases, beauty bias, and implicit weight bias.  The impact of these biases can be great, including who gets the promotion, how much money an individual makes, and even personal treatment day to day.  Legal developments have excluded claims of implicit bias in the workplace, but evidence of continued, pervasive discrimination persists.

1. L. Elizabeth Sarine, Regulating the Social Pollution of Systemic Discrimination Caused by Implicit Bias, 100 Cal. L. Rev. 1359, 1372 (2012)
2. Judge Nancy Gertner & Melissa Hart, Implicit Bias in Employment Litigation, in IMPLICIT RACIAL BIAS ACROSS THE LAW 94 (Levinson & Smith eds. 2012).

Disparities in the quality of health care and outcomes afforded to minorities have severe consequences.  Some examples from Benfer's article include:

[a] doctor with implicit racial bias will be less likely to refer minority patients to a specialist or may recommend surgery over a less invasive treatment. 

In one study, physicians were forty percent less likely to refer African American patients for cardiac catheterization than white patients. 

In another study, the more negative the doctors' implicit attitudes, the less likely the doctors were to recommend thrombolytic drugs for African American patients." 1

Presently, there are no laws in place to address such implicit bias in health care.  As Professor Matthew states, "Law is one of the strongest of American social tools to both reflect and influence changing social norms. As we work towards addressing the health inequities arising from implicit bias, we should remain cognizant of that tool's utility." 2

For more information, see: 

1. Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 289–90 (2015)
2. Dayna Bowen Matthew, Toward A Structural Theory of Implicit Racial and Ethnic Bias in Health Care, 25 Health Matrix 61, (2015)