50 Ariz. St. L.J. 193 (2018). Michael Selmi.
Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive, and uncontrollable. What has been overlooked, however, and this is the paradox, is that labeling nearly all contemporary discrimination as implicit and unconscious is likely to place that behavior beyond legal reach. And it turns out that most of what is defined as implicit bias could just as easily be defined as explicit or conscious bias. This article, therefore, challenges the common narrative by questioning the unconscious nature of implicit bias, and showing that such bias is less pervasive and more controllable than typically asserted. A critical review of the IAT will also reveal that implicit bias is most relevant to snap judgments rather than the more common deliberative decisions the legal system addresses. Implicit bias can certainly influence conscious decisions but it rarely dictates them. I will also discuss a recent spate of cases rejecting the implicit bias model to demonstrate that there is a clear mismatch between the implicit bias narrative and our governing legal standards of proof. As a way of realigning the narrative, I will propose that we move away from a focus on the unconscious, and the IAT, to concentrate instead on field studies that document discrimination in real world settings. In addition, by shifting the discussion to how stereotyping, without reference to the unconscious, influences behavior and leads to discriminatory decisions, we can return to familiar judicial terrain, as courts have been adjudicating claims involving stereotyping for decades.