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The present research examined whether implicit and explicit racial attitudes predict interracial interaction behavior differently as a function of situationally available control resources. Specifically, we investigated how implicit attitudes (Implicit Association Test) and explicit attitudes (Blatant/Subtle prejudice) were related to interracial interaction behaviors of Italians toward an African interviewer (Study 1) and of Germans toward a Turkish interviewer (Study 2). For half of the interview questions, participants' control resources were reduced via a memory task. Across both studies, the Race IAT was more predictive of behavior when participants were taxed than when untaxed. Conversely, explicit attitudes were somewhat more predictive under full resources. Taken together, our findings suggest that available control resources moderate the predictive validity of implicit and explicit attitudes.
In this Article, Professor Krieger examines the implications of social cognition and social identity theory for the debate over affirmative action. In Part I, she explores the extent to which insights from those fields support the claim that affirmative action preferences exacerbate intergroup tensions and perpetuate certain subtle forms of intergroup bias. Finding qualified support for that view in both theoretical models and empirical evidence, Part I concludes that at least certain preferential forms of affirmative action may injure intergroup relations in a variety of troubling ways. Extending the analysis in Part II, Professor Krieger inquires whether, absent preferential forms of affirmative action, remaining legal and policy tools will suffice to control discrimination and prevent the further segregation of American society. Part II concludes that these remaining tools, which include a colorblindness model of nondiscrimination, reliance on an objective concept of merit, and the use of individual disparate treatment adjudication as a primary law enforcement tool, are unequal to the task. The misplaced confidence in these tools often found among affirmative action opponents derives, Krieger suggests, from a misunderstanding of the nature and sources of intergroup bias, from a failure to recognize its subtlety and tendency to persist over time, and from over-reliance on limited adjudicatory and regulatory approaches to address what is fundamentally a complex cultural problem. Accordingly, Professor Krieger argues that we are not yet ready to abandon preferential forms of affirmative action for the simple reason that we have nothing adequate with which to replace them. Unless more inclusive jurisprudential models of intergroup bias and new approaches to reducing such bias are developed, the problems of discrimination and inequality of opportunity can be expected to worsen in a post-affirmative action environment. In her Conclusion, Krieger articulates a set of first principles and constructs a general conceptual foundation for the future development of such a broadened view.
This article documents the inadequacy of the prevailing legal approaches to discrimination in the workplace based on their failure to take account of both the emerging dynamics of organizational governance and the patterns of exclusion and bias that operate within these organizational structures. It then lays out the outline of a more structural and dynamic approach to regulation that has the potential to respond to the dynamic, interactive, and unstable conditions in which employment practices increasingly occur. The article begins by offering examples from three different workplaces that illustrate the gap between discrimination law and the emerging dynamics of workplace decision making. It then identifies six major areas of disconnect between current regulatory approaches and emerging conditions: (1) Legal doctrine and practice focus on top-down, bureaucratic decision making. In many organizations, power over employment decisions has been more decentralized and dispersed. (2) Law and theories of regulation tend to focus on either individuals or organizational policies as the locus of bias, to the exclusion of groups and structures that often play more central roles in causing individual exclusion based on race and gender. Teams, committees, panels, and other groups frequently determine both the day-to-day experience and the outcome of pivotal decisions in the workplace. (3) Current emphasis on discrete employment decisions fails to account for the increasingly embedded and interactive character of employment decision making. (4) By treating conflict, particularly racial and gender conflict, as aberrational and inevitably destructive, current regulatory approaches fail to reflect the day-to-day dynamics of workplace interaction. This approach polarizes racial and gender conflict when it does arise, and ignores the potential of conflict as a way of routinizing surprise. (5) Legal regulation within the prevailing paradigm treats racial and gender discrimination as an issue of individual fault and individual causation, reflected in conscious or unconscious motivation. Racial and gender bias is often reflective of and affected by deeper patterns of institutional dysfunction around power, conflict and decision making. (6) Legal intervention often occurs after the fact in reaction to crises and problems, and fails to connect legal norms to the complex internal dynamics of organizations. As organizations become more fluid and power is exercised through group interaction and decision making, it becomes necessary to experiment with structural approaches to legal regulation that focus on systems of decision making both within and across the boundaries of workplaces. This approach would construct tiered and interactive processes of regulation that would encourage the continual rearticulation and implementation of legal norms into organizational practive and legal discourse. It would explicitly employ organizational incentives and the interaction among legal and nonlegal actors in the project of creating lawful, inclusionary practices within institutions. The challenge becomes one of forging dynamic relationship between the role of law in enforcing minimum standards of conduct through sanctions and the role of law in creating incentives for organizations to structure fair, accountable, and effective systems for exercising discretion.
This paper evaluates alternative explanations for the dramatic increase in black employment in South Carolina manufacturing that occurred in the mid-1960s. Black progress in traditionally segregated sectors of manufacturing in operation at the time Jim Crow laws were passed cannot be attributed to tight labor markets, the decline of agriculture, or the growth of education of the black workforce. The only plausible explanation is federal government civil rights and affirmative action policy. For newer industries that entered the state on a large scale after World War II, the growth of skills among blacks accounts for black economic progress. Copyright 1989 by American Economic Association.
The debates over the passage of Title VII of the 1964 Civil Rights Act were marked by passionate disagreement: conservatives objected to the legislation as an unwarranted interference with employers' freedom of contract, while liberal supporters considered it a first step toward racial justice. While disagreement about what employment discrimination law should do has continued—in much the same form—to this day, there has been surprising consensus about the mechanism by which Title VII actually works: whether it is thought of as inadequate or excessive, Title VII is usually presumed to promote the hiring of those it is designed to protect. The logic underlying this presumption is simple: by making employers liable for failures to hire based on race (or other forbidden grounds), the law raises the price of such discriminatory activity and produces less of it than would occur if employers were left completely free to hire whomever they wished.
As Donohue and Siegelman and others have recognized, however, there is a tension between protecting applicants against discrimination in hiring and protecting workers from discriminatory firing after they have been hired. Antidiscrimination law forbids both kinds of conduct, but the two prohibitions are inherently at odds. By making it harder to fire certain workers, employment discrimination law tends to make these workers less attractive prospects at the hiring stage. An employer would prefer to hire someone who can be easily fired (should that prove necessary) than an otherwise identical applicant whose firing would be subject to legal scrutiny. Thus, protection against discriminatory firing acts as a kind of tax on hiring those to whom it is extended.
"Behavioral law and economics"--the general topic of this Symposium-seeks to bring together "behavior" and "law and economics." Law and economics (without the modifier) is of course already about behavior. But it is typically about behavior of a particular sort: highly "rational" (in a particular sense of that term), optimizing behavior. Sometimes it is reasonable to assume that people behave in this manner; other times it is not. The "behavioral" in "behavioral law and economics" is about infusing law and economics with insights into actual (rather than hypothesized) human behavior when such insights are needed to insure sound predictions or prescriptions about law.
This study examined the influence of situational power on automatic racial prejudice. White females anticipated participating in either an interracial or same-race interaction in one of two roles: superior or subordinate. Their racial attitudes were measured via the Implicit Association Test (Greenwald, McGhee, & Schwartz, 1998). Results revealed that both the racial composition of the anticipated dyad and participants’ situational roles influenced automatic racial attitudes. Specifically, whites assigned to the high-power role of a superior of a black individual revealed more racial bias than whites assigned to the lower-power role of a subordinate. By contrast, situational power had no influence on the automatic bias of whites anticipating same-race interactions. These results reveal the manner in which situational power hierarchies serve to reinforce existing social stratification. Implications for diversity efforts and attitude change are discussed.
The canonical idea of "antidiscrimination" in the United States condemns the differential treatment of otherwise similarly situated individuals on the basis of race, sex, national origin, or other protected characteristics. Starting from this perspective, legal requirements that actors take affirmative steps to "accommodate" the special, distinctive needs of particular groups, such as individuals with disabilities, by providing additional benefits or allowances to them strike many observers as fundamentally distinct from, broader than, and often less legitimate than legal requirements within the canonical "antidiscrimination" category. On this ground, observers sharply contrast Title VII of the Civil Rights Act of 1964 and other older civil rights enactments, said to be "antidiscrimination" laws, with the Americans with Disabilities Act of 1990 (ADA) and the Family and Medical Leave Act of 1993 (FMLA), said to be "accommodation" laws. On these observers' view, "antidiscrimination" focuses on "equal" treatment, while "accommodation" focuses on "special" treatment.The goal of this paper is to intervene in two respects in this longstanding discussion over the relation-ship between antidiscrimination and accommodation. The first point it makes is that, in a broader respect than has generally bee appreciated, some aspects of antidiscrimination law--in particular of its disparate impact branch--are in fact requirements of accommodation. In such instances it is hard to resist the conclusion that antidiscrimination and accommodation are overlapping rather than fundamentally distinct notions, despite the frequent claims of commentators to the contrary. The overlap between the two concepts, I suggest, also sheds light on the question of Congress's power under Section 5 of the Fourteenth Amendment to enact laws (such as the FMLA) that expressly mandate the provision of particular employment benefits directed toward specific groups of employees.The second point the paper makes is that even those aspects of antidiscrimination law that are not in fact accommodation requirements in the sense just described are similar to accommodation requirements in respects that have not previously been understood. The point is clearest--and has been recognized previously--in situations in which antidiscrimination law prohibits employer behavior based on customer or coworker dislike of a particular group; here antidiscrimination law fairly obviously operates to require employers to ignore undeniable financial costs associated with the disfavored group of employees, and thus in a real sense to "accommodate" these employees. But, as I describe, the parallel between antidiscrimination and accommodation is broader and embraces additional aspects of antidiscrimination law as well.This second point, in addition to suggesting that antidiscrimination shares such previously unrecognized parallels with accommodation, is of independent interest in showing how antidiscrimination law may be analyzed using a supply and demand framework drawn from economics. The analysis I offer here builds upon and extends John Donohue's well-known work in this area.
The Civil Rights Act of 1991 (CRA91) was enacted after a rancorous debate about whether it was a "quota" hiring bill or a necessary means of opening labor markets. We analyze the effects of CRA91 on the composition of firms' workforces. We consider employer behavior when firms vary in their susceptibility to discrimination suits and when firms can reduce exposure to discrimination claims by employing more protected workers. These forces lead to a sorting effect, which causes firms that are more susceptible to discrimination litigation to substitute away from protected workers, and a quota effect, which causes firms with fewer pre-CRA91 protected workers to substitute toward these workers. Using data from various sources, we find evidence consistent with CRA91 having had a sorting effect. We find no evidence that CRA91 led to widespread quota hiring and no evidence that CRA91 helped integrate industries that had employed relatively few protected workers. Copyright 2002 by the University of Chicago.