This ought to get your blood boiling:
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.
These two guys get it right:
Mark S. Dichter, an attorney at Morgan Lewis & Bockius LLP in Philadelphia, says that Bielby engages in the very practice that he finds so troublesome. “At the heart of his analysis is a stereotype statement that men are going to act in a certain way, without any analysis that men in [a] particular company are in fact acting that way,” says Dichter. Adds Christopher Winship, a sociologist at Harvard University, who has opposed Bielby in seven cases. “If anybody came in and did that about women and blacks, all hell would break loose.”
Read the whole thing.
Hat tip: Stephen