Making good on good intentions: The critical role of motivation in reducing implicit workplace discrimination

Virginia Law Review

Volumn 95, Issue 8, 2009, Pages 1893-1972

  Bartlett, Katharine T ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 77649256905     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (496)

1. This Article addresses discrimination based primarily on race and gender. Examination of the differences between race discrimination and gender discrimination are beyond the scope of this Article, although the data suggest that differences do exist. See, e.g., Alexander M. Czopp & Margo J. Monteith, Confronting Prejudice (Literally): Reactions to Confrontations of Racial and Gender Bias, 29 Personality & Soc. Psychol. Bull. 532, 541-42 (2003) (finding that people feel more guilty and upset about offending blacks than women). This Article draws upon some social psychology research relating to stereotyping and bias based on age, sexual orientation, and disability, although there are differences here as well that this Article does not examine.
2. For a review of the research on implicit bias, see Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945 (2006). Much of the research for such conclusions is drawn from the Implicit Association Test (IAT), which is a computer-based test that measures time-response differentials to positive and negative associations related to race, sex, disability, and a number of other stereotype-ridden characteristics.
3. For a description of other tests developed to measure implicit bias, which include not only time-response measure but also word-fragment completion drills, priming tasks, sentence-completion tasks, and cardiovascular measures, see Russell H. Fazio & Michael A. Olson, Implicit Measures in Social Cognition Research: Their Meaning and Use, 54 Ann. Rev. Psychol. 297, 299-300 (2003).
4. On the basis of the IAT, Jerry Kang and Mahzarin Banaji make the "conservative estimate" that "seventy-five percent of Whites (and fifty percent of Blacks) show anti-Black bias, and seventy-five percent of men and women" associate female with family more easily than they do with career. Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 Cal. L. Rev. 1063, 1072 (2006);
5. see also Brian A. Nosek et al., Harvesting Implicit Group Attitudes and Beliefs From a Demonstration Web Site, 6 Group Dynamics: Theory, Res., & Prac. 101, 112 (2002) (finding that IAT research indicates that all social groups hold implicit biases, regardless of age, gender, race, and political views).
6. See Anthony M. Greenwald & Mahzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4, 7 (1995); see also Greenwald & Krieger, supra note 2, at 961 (evidence that implicit bias leads to discriminatory behavior is "already substantial");
7. Anthony M. Greenwald et al., Understanding and Using the Implicit Association Test: III. Meta-Analysis of Predictive Validity, 97 J. Personality & Soc. Psychol. 17 (2009) (meta-analysis of IAT research suggests that IAT predicts discriminatory behavior);
8. Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1514 (2005) ("persuasive evidence" that implicit bias predicts disparate behavior).
9. For a sampling of the critiques, see Hal R. Arkes & Philip E. Tetlock, Attributions of Implicit Prejudice, or "Would Jesse Jackson 'Fail' the Implicit Association Test?," 15 Psychol. Inquiry 257 (2004) (implicit bias research measures cultural stereotypes rather than personal animus, and results can be explained by factors other than prejudice);
10. Hart Blanton & James Jaccard, Unconscious Racism: A Concept in Pursuit of a Measure, 34 Ann. Rev. Soc. 277 (2008) (evidence suggests that people sometimes lack control over the cause and consequences of their racial biases, but not that they are unconsciously racist);
11. Hart Blanton et al., Strong Claims and Weak Evidence: Reassessing the Predictive Validity of the IAT, 94 J. Applied Psychol. 567 (2009) (IAT results do not permit predictions of individual-level behaviors, and when various methodological factors are taken into account, are more consistent with pro-black than anti-black bias);
12. Miguel C. Brendl et al., How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test, 81 J. Personality & Soc. Psychol. 760 (2001) (results on IAT test can be explained by factors other than implicit prejudice);
13. Andrew Karpinski & James L. Hilton, Attitudes and the Implicit Association Test, 81 J. Personality & Soc. Psychol. 774 (2001) (IAT reflects exposure to stereotypes but not endorsement thereof);
14. Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 Ohio St. L.J. 1023 (2006) (implicit prejudice research lacks construct and content validity, ignores high error rates and alternative explanations for alleged discriminatory behavior, and draws naïve conclusions about link between laboratory results and the real world).
15. Philip Tetlock and Gregory Mitchell see the debate between IAT proponents and critics as part of a long-running impasse between a point of view that sees prejudice as ubiquitous and thinks it is the government's role to stop it (which they call the "statist-intervention" position), and an approach that believes in the power of competition to eliminate irrational biases (which they call the "market-purist" position). Tetlock and Mitchell conclude that both sides should back off of their non-falsifiable propositions and join in "adversarial collaboration" based on shared standards of proof. See Philip E. Tetlock & Gregory Mitchell, Implicit Bias and Accountability Systems: What Must Organizations Do to Prevent Discrimination?, 28 Research in Organizational Behavior (Barry Straw & Arthur Brief, eds., forthcoming 2009), available at http://www.law.virginia.edu/pdf/faculty/ ImplicitBiasinOrganizationsandAdversarialCollaboration.pdf.
16. See Jennifer Crocker et al., Social Stigma, in Handbook of Social Psychology 504, 513 (Daniel T. Gilbert et al. eds., 4th ed. 1998);
17. John F. Dovidio et al., Implicit and Explicit Prejudice and Interracial Interaction, 82 J. Personality & Soc. Psychol. 62, 63 (2002);
18. Susan T. Fiske, What We Know About the Problem of the Century: Lessons from Social Science to the Law, and Back, in Handbook of Employment Discrimination Research: Rights and Realities 59, 60, 63 (Laura Beth Nielsen & Robert L. Nelson eds., 2005).
19. The classic work on this subject is Carl O. Word, The Nonverbal Mediation of Self-Fulfilling Prophecies in Interracial Interaction, 10 J. Exper. Soc. Psychol. 109, 119 (1974) (negative nonverbal behaviors produced poorer performance in job interview setting among both whites and blacks).
20. See also Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. Personality & Soc. Psychol. 797, 805-06 (1995) (subtle cues that remind ethnic minority students of their stigmatized status undermines achievement on academic tests).
21. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1167, 1209, 1213 (1995).
22. See generally Samuel L. Gaertner & John F. Dovidio, Understanding and Addressing Contemporary Racism: From Aversive Racism to the Common Ingroup Identity Model, 61 J. Soc. Issues 615, 625 (2005) (describing research revealing that whites and blacks perceive of the same encounters in different ways, without being aware of their different perceptions);
23. Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093 (2008).
24. In the criminal context, see Dan M. Kahan et al., Whose Eyes Are You Going to Believe?: Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 838 (2009) (describing psychological disposition of individuals to observe and resolve disputed facts in a manner supportive of their group identities);
25. Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decision-making, and Misremembering, 57 Duke L.J. 345 (2007) (suggesting that judges and jurors misremember case facts in racially biased ways).
26. See Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol'y Rev. 103, 110 display 2 (2009) (defendants are almost three times more likely to win on appeal of plaintiffs' wins at pretrial than plaintiffs are to win on appeal of defendants' pretrial wins, and defendants are more than four times more likely than plaintiffs to win appeals of trial verdicts);
27. Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Studies 429 (2004) (employment discrimination plaintiffs are four times as likely to lose in the pre-trial litigation stage as plaintiffs in other civil cases, twice as likely to lose at trial, and four times as likely to have their verdicts overturned on appeal). The win rate of Title VII cases filed in federal court between 1998 and 2006 was just over ten percent.
28. Clermont & Schwab, From Bad to Worse?, supra, at 117 display 6.
29. See Clermont & Schwab, From Bad to Worse?, supra note 9, at 115-18 (termination of federal employment discrimination cases fell from 23,721 in 1999 to 15,007 in 2007);
30. Laura Beth Nielsen et al., Uncertain Justice: Litigating Claims of Employment Discrimination in the Contemporary United States 14 (ABA Research Paper No. 08-04, Apr. 16, 2008), available at http://ssrn.com/abstract=1093313 (federal employment discrimination filings dropped from 23,796 in fiscal year 1997 to 14,353 in fiscal year 2006).
31. See infra Section II.B.
32. See Amy L. Wax, Discrimination as Accident, 74 Ind. L.J. 1129,1133 (1999). Wax argues that Title VII covers unconscious as well as conscious discrimination, but still requires that discrimination be proved.
33. See Amy L. Wax, The Discriminating Mind: Define It, Prove It, 40 Conn. L. Rev. 979 (2008).
34. See, e.g., Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460-61 (2001);
35. see also Susan Sturm, The Architecture of Inclusion: Advancing Workplace Equity in Higher Education, 29 Harv. J.L. & Gender 247 (2006) (suggesting that institutional reform is more promising than legal reform in making universities more inclusive).
36. Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1058-59, 1072-89, 1113-21 (2009);
37. see also Charles Lawrence III, Unconscious Racism Revisited: Reflections on the Impact and Origins of "The Id, the Ego, and Equal Protection," 40 Conn. L. Rev. 931, 942 (2008) (arguing that the emphasis on unconscious bias has diverted attention from the ideology and material structures of white supremacy).
38. See Banks & Ford, supra note 14, at 1072-89 (arguing that Title VII may not be adequate, but the problem is not that it treats conscious and unconscious bias differently); Amy Wax, Discrimination as Accident, 74 Ind. L.J. 1129, 1146-52 (1999) (reading Title VII and the cases applying it to prohibit both conscious and unconscious discrimination).
39. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 387 (1987) (implying that the intent requirement in antidiscrimination law rationalizes the status of the privileged who do not intentionally discriminate);
40. David Wellman, Unconscious Racism, Social Cognition Theory, and the Legal Intent Doctrine: The Neuron Fires Next Time, in Handbook of the Sociology of Racial and Ethnic Relations 39 (Hernán Vera & Joe R. Feagin eds., 2005) (exposing the extent to which racial advantage is invisible and rationalized); see also Banks & Ford, supra note 14, at 1104-05 (criticizing unconscious bias discourse because it permits people to affirm their self-image as non-racist).
41. See Ann C. McGinley, ¡Viva La Evolucion!: Recognizing Unconscious Motive in Title VII, 9 Cornell J.L. & Pub. Pol'y 415,482 (2000).
42. Among some recent examples, see Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 Vand. L. Rev. 849, 851-53 (2007);
43. Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1103 (2008).
44. See, e.g., John A. Bargh, The Cognitive Monster: The Case Against the Control-lability of Automatic Stereotype Effects, in Dual-Process Theories of Social Psychology 361, 361, 362, 376, 378 (Shelly Chaiken & Yaacov Trope eds., 1999) (noting there is little that can be done to control influence of automatic stereotypes; the deactivation of unconscious stereotypes would require the almost unimaginable combination of a person being aware of the nonconscious influences, having a relatively accurate theory about the nature of those influences, and being sufficiently motivated and skilled to correct for them); Kang & Banaji, supra note 2, at 1079 ("[A]n explicit ex ante exhortation not to be intentionally unfair will do little to counter implicit cognitive processes, which take place outside our awareness yet influence our behavior.").
45. See Edward L. Deci & Richard M. Ryan, The "What" and "Why" of Goal Pursuits: Human Needs and the Self-Determination of Behavior, 11 Psychol. Inquiry 227 (2000) (citing studies); see infra Subsection III.B.2.
46. Nor are good intentions sufficient. They may, however, make the difference between whether or not other specific strategies to reduce bias actually work. See infra Part IV.
47. See infra Section III.A.
48. Sources documenting the decline in racism and sexism since the 1940s include Richard J. Crisp & Rhiannon N. Turner, Essential Social Psychology 166-68 (2007);
49. Howard Schuman et al., Racial Attitudes in America: Trends and Interpretations 104-05 (1997);
50. John F. Dovidio, On the Nature of Contemporary Prejudice: The Third Wave, 57 J. Soc. Issues 829, 930-31 (2001);
51. Peter Glick & Susan T. Fiske, The Ambivalent Sexism Inventory: Differentiating Hostile and Benevolent Sexism, 70 J. Personality & Soc. Psychol. 491 (1996).
52. As more explicit forms of racism and sexism declined, so evolved the terms used to name each. Thus, what was once considered "racism" later came to be referred to as "old-fashioned racism" or "dominative racism," and was then replaced by terms encompassing more subtle forms, called "modern racism," and later "symbolic," "ambivalence," "aversive," and (more generally) "implicit" racism. See Joel Kovel, White Racism: A Psychohistory 54 (1970) (discussing dominative racism);
53. John Duckitt, The Social Psychology of Prejudice 19-24 (1992) (discussing symbolic racism);
54. Samuel L. Gaertner et al., Aversive Racism: Bias Without Intention, in Handbook of Employment Discrimination Research 377 (Laura Beth Nielsen & Robert L. Nelson eds., 2005) (discussing aversive racism);
55. see also John F. Dovidio, On the Nature of Contemporary Prejudice: The Third Wave, 57 Soc. Issues 829 (2001) (giving a historical overview of study of racism, with focus on aversive racism).
56. The study of sexism over time has produced a similar progression of terms. See Janet K. Swim et al., Sexism and Racism: Old-Fashioned and Modern Prejudices, 68 J. Personality & Soc. Psychol. 199 (1995) (comparing Old-Fashioned Sexism and Modern Sexism);
57. Francine Tougas et al., Neo-Sexism: Plus Ça Change, Plus C'est Pareil, 21 Personality & Soc. Psychol. Bull. 842 (1995) (discussing neo-sexism);
58. Peter Glick et al., Beyond Prejudice as Simple Antipathy: Hostile and Benevolent Sexism Across Cultures, 79 J. Personality & Soc. Psychol. 763 (2000) (comparing hostile and benevolent sexism); Glick & Fiske, supra (discussing ambivalent sexism).
59. Several scholars have observed that the trends in today's workplace present more opportunities for the subtle forms of discrimination than were possible in prior generations. These trends include the flattening of workplace hierarchies, blurring of job boundaries, allocation of work in teams rather than to individuals, adoption of more skill-based, individualistic, and flexible methods of workplace evaluation, and reduction in job security. See Katherine V. W. Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace 174-83 (2004);
60. Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 Harv. C.R.-C.L. L. Rev. 91, 93, 101-03 (2003);
61. see also Cynthia Estlund, Working Together: How Workplace Bonds Strengthen a Diverse Democracy (2003).
62. See, e.g., Faye Crosby et al., Recent Unobtrusive Studies of Black and White Discrimination and Prejudice: A Literature Review, 87 Psychol. Bull. 546 (1980) (documenting continued racial bias, in the face of public opinion polls appearing to show the decline of racism);
63. Olatunde Johnson, Disparity Rules, 107 Colum. L. Rev. 374 (2007) (arguing that continued racial disparities show that racism still exists);
64. Lincoln Quillian, New Approaches to Understanding Racial Prejudice and Discrimination, 32 Ann. Rev. Soc. 299, 302-09 (2006) (describing audit studies that show a persistence of race discrimination in housing and employment, despite evidence that negative racial attitudes have declined).
65. See Lawrence D. Bobo, Prejudice as Group Position: Microfoundations of a Sociological Approach to Racism and Race Relations, 55 J. Soc. Issues 445, 447 (1999) (developing a group position approach);
66. Barbara F. Reskin, The Proximate Causes of Employment Discrimination, 29 Contemporary Soc. 319, 321 (2000) (concluding that sociologists see prejudice as a "fundamental mechanism of stratification through which dominant groups preserve their privileged position").
67. Reskin, supra note 26, at 320.
68. See Bobo, supra note 26, at 464 (describing the Jim Crow belief that blacks are inferior to whites).
69. See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring) (separate spheres of men and women is "founded in the divine ordinance, as well as in the nature of things").
70. In the context of race, Lawrence Bobo refers to this as "laissez-faire racism." See Bobo, supra note 26, at 464-65. In the context of sex, Catharine A. MacKinnon calls the theory that neutral principles such as objectivity, equality, and free speech are constructed so as to protect men's interests and subordinate women "feminism unmodified." See Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 48-62 (1987);
71. Catharine A. MacKinnon, Toward a Feminist Theory of the State 157-70 (1989).
72. There are a number of variations on this theme. See, e.g., David O. Sears et al., Egalitarian Values and Contemporary Racial Politics, in Racialized Politics: The Debate About Racism in America 75, 79 (David O. Sears et al. eds., 2000) (suggesting that negative views toward race today are fused with race-neutral traditional American values, such as individualism, the work ethic, delay of gratification, patriotism, and respect for authority);
73. Jim Sidanius & Felicia Pratto, Social Dominance: An Intergroup Theory of Social Hierarchy and Oppression (1999) (tying opposition to race-targeted policies to the desire for group dominance);
74. Paul M. Sniderman & Edward G. Carmines, Reaching Beyond Race, 30 PS: Political Science & Politics 466, 471 (1997) (stating that differences in racial policy beliefs today are about politics, not race).
75. See Gary Blasi & John T. Jost, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, 94 Cal. L. Rev. 1119 (2006);
76. John T. Jost & Mahzarin R. Banaji, The Role of Stereotyping in System Justification and the Production of False Consciousness, 33 Brit. J. Soc. Psychol. 1 (1994). System justification theory, although rooted in social psychology rather than sociology, is congruent with other ideology-based theories according to which people reconcile themselves to the world they live in, rather than confront its injustices, such as the theory of cognitive dissonance, and the "just world" thesis.
77. See, e.g., Leon Festinger, A Theory of Cognitive Dissonance (1957);
78. Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion (1980). Belief in a just world lessens the likelihood that members of lower-status groups will perceive discrimination when rejected for a job position, and increases the chances that members of higher-status groups will blame their rejection on discrimination.
79. See Deborah L. Brake, Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives that Obscure Gender Bias, 16 Colum. J. Gender & L. 679, 688 (2007) (surveying research);
80. see also MacKinnon, Toward a Feminist Theory of the State, supra note 30, at 114 (arguing that women are pushed by the dominant, male perspective to see reality in male terms that denies their oppression, even though it contradicts some of their lived experience);
81. Peter Glick et al., Beyond Prejudice as Simply Antipathy: Hostile and Benevolent Sexism Across Cultures, 79 J. Personality & Soc. Psychol. 763, 773 (2000) (women adopt stereotypes about themselves as a form of self-defense and survival).
82. For discussion of how ideologies and situational factors are "mutually reinforcing" in stimulating group competition and prejudice, see Victoria M. Esses et al., Instrumental Relations Among Groups: Group Competition, Conflict, and Prejudice, in On the Nature of Prejudice: Fifty Years After Allport 227, 233 (John F. Dovidio et al. eds., 2005).
83. The interest-convergence thesis is set forth in Derrick Bell, Diversity's Distractions, 103 Colum. L. Rev. 1622, 1624 (2003);
84. see also Derrick A. Bell Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 523 (1980) (suggesting that progress of blacks occurs only when it serves the interests of whites).
85. For a critique, see Justin Driver, Rethinking the Interest-Convergence Thesis (unpublished manuscript, on file with the Virginia Law Review).
86. Robert L. Dipboye & Adrienne Colella, An Introduction, in Discrimination at Work: The Psychological and Organization Bases 1-2 (Robert L. Dipboye & Adrienne Colella eds., 2005).
87. See, e.g., Tristin K. Green & Alexandra Kalev, Discrimination- Reducing Measures at the Relational Level, 59 Hastings L.J. 1435, 1450-52 (2008);
88. Sturm, Second-Generation Discrimination, supra note 13, at 466-71; Wellman, supra note 16, at 53.
89. Diane M. Mackie et al., Social Psychological Foundations of Stereotype Formation, in Stereotypes and Stereotyping 41, 42-43 (C. Neil Macrae et al. eds., 1996).
90. See Susan T. Fiske et al., The Continuum Model: Ten Years Later, in Dual-Process Theories, supra note 19, at 231, 232-34 (stating that gender, ethnicity and age are "privileged" social categories because they are immediately physically manifested and have important cultural meanings that are often relevant to people's immediate interaction goals);
91. David L. Hamilton et al., Social Cognition and the Study of Stereotyping, in Social Cognition: Impact on Social Psychology 291, 311-12 (Patricia G. Devine et al. eds., 1994) (citing research suggesting that these categories are based on basic and unalterable biological differences and reflect other differences on a variety of other attributes). The importance of these traits as organizational categories is apparent even in young children.
92. See, e.g., Andrew Scott Baron & Mahzarin R. Banaji, The Development of Implicit Attitudes: Evidence of Race Evaluations from Ages 6 and 10 and Adulthood, 17 Psychol. Sci. 53, 56 (2006). Children appear to use gender even earlier than race or age to categorize people. See Mackie et al., supra note 35, at 46-47.
93. The commonality of gender, race, and age as cross-cultural categories does not mean that perceptual tendencies are uniform across cultures. For example, some research indicates that East Asians perceive objects and people more situationally, in their contextual frameworks, than Americans, while Americans are more likely to make assumptions about people's dispositions and personality traits. For a review of some of the studies and some original research involving Japanese research subjects, see Takahiko Masuda & Richard E. Nisbett, Attending Holistically Versus Analytically: Comparing the Context Sensitivity of Japanese and Americans, 81 J. Personality & Soc. Psychol. 922 (2001).
94. See Jason P. Mitchell et al., Contextual Variations in Implicit Evaluation, 132 J. Experimental Psychol.: Gen. 455, 459 (2003). The more extreme the characteristics, the more salient, and thus the more likely they are to trigger stereotypes.
95. See Irene V. Blair et al., The Role of Afrocentric Features in Person Perception: Judging by Features and Categories, 83 J. Personality & Soc. Psychol. 5 (2002) (finding that skin tone, eyes, nose shape and size, lips, and hair texture determined how quickly blacks are categorized by race, and thus to be judged by racial stereotypes);
96. Devon Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev. 1259 (2000) (suggesting that race-associated behaviors enhance stereotyping).
97. As stated by Gordon Allport, who is widely credited with the development of social categorization theory upon which others have built, "The human mind must think with the aid of categories [or] generalizations. Once formed, categories are the basis for normal prejudgment. We cannot possibly avoid this process. Orderly living depends upon it." Gordon Allport, The Nature of Prejudice 20 (1954). Stereotypes also serve social functions such as by signaling whether one should offer one's seat on a crowded bus (to, say, a disabled or elderly person), or whether it is all right to ask someone for a glass of water (say, a waitress), a book (a librarian), or for help (a police officer).
98. See Mark Snyder & Peter Miene, On the Functions of Stereotypes and Prejudice, in 7 The Psychology of Prejudice: The Ontario Symposium, 33, 46 (Mark P. Zanna & James M. Olson eds., 1994).
99. See Samuel L. Gaertner & John F. Dovidio, Reducing Intergroup Bias: The Common Ingroup Identity Model 35 (2000).
100. Applied to social groups, this is called the "out-group homogeneity effect." See Thomas M. Ostrom & Constantine Sedikides, Out-Group Homogeneity Effects in Natural and Minimal Groups, 112 Psychol. Bull. 536 (1992).
101. See Henri Tajfel, Cognitive Aspects of Prejudice, 25 J. Soc. Issues, Autumn 1969, at 79, 83-86 (1969);
102. Henri Tajfel & A.L. Wilkes, Classification and Quantitative Judgement, 54 Brit. J. Psychol. 101, 104 (1963).
103. See infra text accompanying notes 56-58.
104. These overgeneralized attributions are called illusory correlations. See David L. Hamilton et al., The Influence of Affect on Stereotyping: The Case of Illusory Correlations, in Affect, Cognition, and Stereotyping: Interactive Processes in Group Perception 39, 44 (Diane M. Mackie & David L. Hamilton eds., 1993).
105. Allport, supra note 38, at 171. Allport reports that "[f]or many years Americans imagined that all Bolsheviks wore whiskers." Id. at 132.
106. Citing some of the basic sources, see Susan T. Fiske, Stereotyping, Prejudice, and Discrimination, in 2 The Handbook of Social Psychology 357, 362 (Daniel T. Gilbert et al. eds., 1998).
107. For studies of "confirmation bias," see Steven L. Neuberg, Expectancy-Confirmation Processes in Stereotype-Tinged Social Encounters: The Moderating Role of Social Goals, in 7 The Psychology of Prejudice: The Ontario Symposium 103, 108 (1994). Because of this bias, it is not necessary for a thing or person to be different; it is enough that they appear to be different. See Allport, supra note 38, at 132.
108. See Fiske, Stereotyping, Prejudice, and Discrimination, supra note 44, at 368. Researchers have referred to the process by which the impact of disconfirming information may be diffused as "prototype subtyping."
109. See Miles Hewstone, Contact and Categorization: Social Psychological Interventions to Change Intergroup Relations, in Stereotypes and Stereotyping 323, 338-41 (C. Neil Macrae et al. eds., 1996); see also sources in infra note 55.
110. See Krieger, supra note 7, at 1165.
111. Id. at 1239.
112. See infra Section II.A.
113. See Susan T. Fiske, Intent and Ordinary Bias: Unintended Thought and Social Motivation Create Casual Prejudice, 17 Soc. Just. Res. 117, 123-24 (2004). For a fuller discussion of human needs that bear on prejudice, see Section III.A.
114. For sources describing earlier understandings of the needs that produced race prejudice as pathologies, see John Duckitt, The Social Psychology of Prejudice 52-54 (1992); Fiske, supra note 44, at 358-59.
115. Samuel L. Gaertner & John F. Dovidio, Reducing Intergroup Bias: The Common Ingroup Identity Model 36 (2000).
116. Marilynn B. Brewer, The Psychology of Prejudice: Ingroup Love or Outgroup Hate?, 55 J. Soc. Issues 429, 430 (1999). Researchers have demonstrated that while ingroup and outgroup biases are the converse of each other, ingroup bias may exist even in the absence of negative attitudes toward outgroups. Id. at 432.
117. See supra text accompanying notes 39-41.
118. See Mackie et al., supra note 35, at 46 (citing examples from a number of studies); Fiske, Stereotyping, Prejudice, and Discrimination, supra note 44, at 368-69 (citing studies).
119. See Steven L. Neuberg, The Goal of Forming Accurate Impressions During Social Interactions: Attenuating the Impact of Negative Expectancies, 56 J. Personality & Soc. Psychol. 374, 375 (1989);
120. see also Mark Snyder & William B. Swann, Jr., Hypothesis-Testing Processes in Social Interaction, 36 J. Personality & Soc. Psychol. 1202 (1978) (describing a study showing how people use social interactions to confirm their hypotheses about other people and how those social interactions also serve to bring about the expected behaviors).
121. Neuberg, Expectancy-Confirmation Processes in Stereotype-Tinged Social Encounters: The Moderating Role of Social Goals, supra note 45, at 106.
122. See research collected in Gaertner & Dovidio, Reducing Intergroup Bias: The Common Ingroup Identity Model, supra note 51, at 38-39.
123. See Kay Deaux & Marianne LaFrance, Gender, in 1 The Handbook of Social Psychology 788, 798 (Daniel T. Gilbert et al. eds., 4th ed. 1998) (women's success at traditionally male tasks tends to be attributed to effort, whereas men's comparable success is attributed to ability). This phenomenon has been labeled the "ultimate attribute error."
124. See Miles Hewstone, The "Ultimate Attribution Error": A Review of the Literature on Intergroup Attributions, 20 Eur. J. Soc. Psychol. 311 (1990) (reviewing nineteen studies documenting attribution errors, especially in the context of racial groups);
125. Thomas F. Pettigrew, The Ultimate Attribution Error: Extending Allport's Cognitive Analysis of Prejudice, 5 Personality & Soc. Psychol. Bull. 461, 464-65 (1979) (defining phenomenon).
126. See Hewstone, The "Ultimate Attribution Error": A Review of the Literature on Intergroup Attributions, supra note 58.
127. Negative action by an out-group member is also perceived at a more abstract and stable level ("she is hostile") than identical behavior of the ingroup member ("she slapped the girl"), while the reverse is true about positive behaviors ("she walked across the street holding the man's hand" versus "she is helpful"). See Gaertner & Dovidio, Reducing Intergroup Bias: The Common Ingroup Identity Model, supra note 51, at 39;
128. Hewstone, The "Ultimate Attribution Error": A Review of the Literature on Intergroup Attributions, supra note 58;
129. Anne Maass et al., Linguistic Intergroup Bias: Evidence for In-Group-Protective Motivation, 71 J. Personality & Soc. Psychol. 512 (1996).
130. See Marilyn B. Brewer & Rupert J. Brown, Intergroup Relations, in 2 The Handbook of Social Psychology 554 (Daniel T. Gilbert et al. eds. 1998);
131. Anthony G. Greenwald et al., Implicit Partisanship: Taking Sides for No Reason, 83 J. Personality & Soc. Psychol. 367, 369 (2002). "Homophily," or the attraction of people toward others like themselves, has been explained under relational demography theory as an "uncertainty reduction mechanism that facilitates individuals' decisions regarding group membership and their formations of personal identities."
132. See Christine M. Riordan et al., Relational Demography Within Groups: Through the Lens of Discrimination, in Discrimination at Work: The Psychological and Organizational Bases 37, 39 (Robert L. Dipboye & Adrienne Colella eds., 2005).
133. Krieger, supra note 7, at 1191-93.
134. Leslie Ashburn-Nardo et al., Implicit Associations as the Seeds of Intergroup Bias: How Easily Do They Take Root?, 81 J. Personality & Soc. Psychol. 789, 793 (2001) (finding ingroup bias even when groups are formed by whether their assigned name has an "X" or a "Q" in it);
135. Henri Tajfel et al., Social Categorization and Intergroup Behavior, 1 Eur. J. Soc. Psychol. 149, 154-55 (1971) (finding that people exhibit ingroup favoritism even when groups formed according to whether people overestimate or underestimate the sizes of dots);
136. see also Nilanjana Dasgupta et al., Automatic Preference for White Americans: Eliminating the Familiarity Explanation, 36 J. Exper. Soc. Psychol. 316 (2000) (reviewing study about the preference for familiar names). Anthony Greenwald puts ingroup favoritism in the context of a larger phenomenon whereby people are invited to "take sides," even when the side they take is as arbitrary as home town, or which team is currently winning, or losing, a game. See Greenwald et al., supra note 61, at 367 (describing a "natural proclivity for partisanship").
137. This was demonstrated dramatically in the Robbers Cave experiments by Muzafer Sherif et al., Intergroup Conflict and Cooperation: The Robbers Cave Experiment (1961).
138. For an account in the social norms literature of how groups both use intra-group status rewards as a non-material means of gaining material sacrifice from members and how this dynamic leads to conflict between groups (and helps to explain racial discrimination), see Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003, 1007-08 (1995).
139. See, e.g., Ashburn-Nardo et al., supra note 63, at 795.
140. See Henri Tajfel & John C. Turner, The Social Identity Theory of Intergroup Behavior Relation, in Psychology of Intergroup Relations 7, 16 (Stephen Worchel & William G. Austin eds., 1986).
141. For a description of similar theories to explain ingroup bias in relation to self-esteem and group identity, see Anthony G. Greenwald et al., A Unified Theory of Implicit Attitudes, Stereotypes, Self-Esteem, and Self-Concept, 109 Psychol. Rev. 3, 9-10 (2002).
142. See also John C. Turner & Rina S. Onorato, Social Identity, Personality, and the Self-Concept: A Self-Categorization Perspective, in The Psychology of the Social Self 11 (Tom Tyler et al. eds., 1999).
143. See Crocker et al., supra note 5, at 508 (threats to people's self-esteem increases ingroup favoritism); Stanley Feldman & Karen Stenner, Perceived Threat and Authoritarianism, 18 Pol. Psychol. 741, 762 (1997) (threats are associated with intolerance, especially among those with authoritarian attitudes);
144. David A. Wilder & Peter N. Shapiro, The Role of Competition-Induced Anxiety in Limiting the Beneficial Impact of Positive Behavior by an Out-Group Member, 57 J. Personality & Soc. Psychol. 60, 67 (1989) (anxiety increases stereotyping of outgroup members, and reduced anxiety increases positive views of outgroup members).
145. Lisa Sinclair & Ziva Kunda, Reactions to a Black Professional: Motivated Inhibition and Activation of Conflicting Stereotypes, 77 J. Personality & Soc. Psychol. 885, 887-94 (1999). Conversely, positive feedback from the same black manager reduced black stereotypes. Id. In follow-up studies, positive feedback from a black doctor appeared to trigger doctor stereotypes, whereas negative feedback triggered negative black stereotypes. Id. at 987-98;
146. see also Spencer et al., Automatic Activation of Stereotypes: The Role of Self-image Threat, 24 Personality & Soc. Psychol. Bull. 1139 (1998) (finding that negative feedback by Asian Americans increased activation of Asian-American stereotypes).
147. Sinclair & Kunda, Reactions to a Black Professional, supra note 68, at 901-02.
148. Lisa Sinclair & Ziva Kunda, Motivated Stereotyping of Women: She's Fine if She Praised Me But Incompetent if She Criticized Me, 26 Personality & Soc. Psychol. Bull. 1329, 1332-33 (2000).
149. Id. The findings of the study were replicated in a follow-up study of feedback by manager in a simulated work setting. Id. at 1334-37. Again, the effect of negative feedback on manager evaluation was not observed when the study subject merely observed the manager giving negative feedback to others. Id. at 1338-40.
150. Steven Fein & Steven J. Spencer, Prejudice as Self-image Maintenance: Affirming the Self Through Derogating Others, 73 J. Personality & Soc. Psychol. 31, 32-37 (1997).
151. The term "aversive racism" was first coined by Joel Kovel, see Kovel, supra note 23, at 54-55 (1970). It was revised and popularized principally through the work of John F. Dovidio and Samuel L. Gaertner. See, e.g., John F. Dovidio & Samuel L. Gaertner, Aversive Racism and Selection Decisions: 1989 and 1999, 11 Psychol. Sci. 315 (2000);
152. Gaertner et al., Aversive Racism, supra note 23.
153. Crisp & Turner, supra note 23, at 166-68; Glick & Fiske, The Ambivalent Sexism Inventory, supra note 23, at 491.
154. See Gaertner et al., Aversive Racism, supra note 23, at 377-85.
155. Glick & Fiske, supra note 23, at 494, 508. Researchers have noted that negative attitudes toward women have always been more ambivalent than negative racial attitudes, because of the "subjectively positive feelings toward women that often go hand in hand with sexist antipathy." Id. at 491.
156. These experiments are summarized in Gaertner et al., supra note 23, at 381-83.
157. See Samuel L. Gaertner, Helping Behavior and Racial Discrimination Among Liberals and Conservatives, 25 J. Personality & Soc. Psychol. 335 (1973). In this "wrong-number" study, each caller tried to explain that his or her car was broken down and that he or she was trying to reach a service station from a parkway telephone, but now, as a result of apparently dialing a wrong number, was out of change, and needed the person on the other end of the line to telephone the garage. Id.
158. This view is consistent with more recent research in the gender context concluding that more negative treatment of women is apparent in low-conflict, low-visibility situations, where it is harder to characterize as discriminatory, and easier to rationalize. See Bongsoon Cho & Debra L. Connelley, The Effect of Conflict and Power Differentials on Social Identity and Intergroup Discrimination 15-17 (unpublished manuscript, available at http:ssrn.com/ abstract=320286).
159. See, e.g., John F. Dovidio & Samuel L. Gaertner, Aversive Racism, supra note 23, at 317.
160. See Gordon Hodson et al., Processes in Racial Discrimination: Differential Weighting of Conflicting Information, 28 Personality & Soc. Psychol. Bull. 460, 469-70 (2002).
161. See Michael I. Norton et al., Casuistry and Social Category Bias, 87 J. Personality & Soc. Psychol. 817, 820-21 (2004). It appears that the qualifications of favored candidates were not only weighted in order to justify the end result, but information was also viewed initially and remembered so as to support the favoritism, even before evaluators knew they would be asked to make a selection. Id. at 824-25.
162. Monica Biernat, Toward a Broader View of Social Stereotyping, 58 Am. Psychologist 1019, 1019 (2003).
163. Id. at 1021. According to Biernat, this is more likely when subjective standards are used, and when non-zero-sum judgments are being made. Id. at 1024-25;
164. see also Lee Jussim et al., The Nature of Stereotypes: A Comparison and Integration of Three Theories, 52 J. Personality & Soc. Psychol. 536, 541-12 (1987) (finding that in an experimental setting, blacks who spoke in Standard English and dressed like members of a high socio-economic class were evaluated more favorably in mock-hiring context than similar whites).
165. See Kent D. Harber, Feedback to Minorities: Evidence of a Positive Bias, 74 J. Personality & Soc. Psychol. 622, 626-27 (1998). This motivation may even elicit more positive feedback to blacks who act in an unfriendly way.
166. See Kent D. Harber, The Positive Feedback Bias as a Response to Out-Group Unfriendliness, 34 J. Applied Soc. Psychol. 2272 (2004).
167. See John F. Dovidio et al., Why Can't We Just Get Along? Interpersonal Biases and Interracial Distruct, 8 Cultural Diversity & Ethnic Minority Psychol. 99, 92, 98-99 (2002).
168. For the observation that overcompensation of candidates appears to represent the recognition of bias, but a naïve form thereof, see Christopher L. Aberson & Tara E. Ettlin, The Aversive Racism Paradigm and Responses Favoring African-Americans: Meta-Analytic Evidence of Two Types of Favoritism, 17 Soc. Just. Res. 25, 40-41 (Mar. 2004).
169. See Biernat, supra note 83, at 1024-25; Nina Gupta et al., Employee Gender, Gender Similarity, and Supervisor-Subordinate Cross-Evaluations, 8 Psychol. Women Q. 174, 179 (1983).
170. 42 U.S.C. § 2000e-2(a)(1) (2006).
171. See Chad Derum & Karen Engle, The Rise of the Personal Animosity Presumption in Title VII and the Return to "No Cause" Employment, 81 Tex. L. Rev. 1177, 1195-1209 (2003) (examining legislative history).
172. 411 U.S. 792 (1973); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 248 (1981) (explaining further the burden of proof set forth in McDonnell Douglas Corp. v. Green).
173. A prima facie case is established when plaintiff proves that he or she is a member of a class protected by Title VII, and failed to obtain an employment opportunity for which she was qualified, or was subjected to an employment action to which others were not subject. Burdine, 450 U.S. at 248.
174. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
175. See, e.g., id. at 141 ("intentional" used to mean whether the "protected trait... actually motivated the employer's decision" (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1998)));
176. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993) (referring interchangeably to the plaintiff's need to prove intentional discrimination, and to prove that race was the "true reason" for the employment decision);
177. see also Price Waterhouse v. Hopkins, 490 U.S. 228, 294 (1989) (Kennedy, J., dissenting) (the "ultimate question" is "whether discrimination caused the plaintiff's harm").
178. For an analysis of the difference between acting in fact on the basis of race or gender, and intending to do so, see Deborah Hellman, When Is Discrimination Wrong?, 138-68 (2008).
179. For a more comprehensive argument that Title VII already prohibits unconscious, as well as conscious, bias, see Banks & Ford, (How) Does Unconscious Bias Matter?, supra note 14, at 1072-89.
180. See also Wax, Discrimination as Accident, supra note 12.
181. For fuller treatment of the confusion over the concept of intent, see Wax, The Discriminating Mind, supra note 12, at 982-83.
182. See, e.g., Lu-in Wang, Discrimination by Default: How Racism Becomes Routine 19-23 (2006);
183. Martha Chamallas, Deepening the Legal Understanding of Bias: On Devaluation and Biased Prototypes, 74 S. Cal. L. Rev. 747, 752 (2001);
184. Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 Vand. L. Rev. 849, 895-900 (2007); Krieger, supra note 7, at 1164, 1168-73; McGinley, supra note 17, at 417-18;
185. Robert L. Nelson et al., Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences, 4 Ann. Rev. L. & Soc. Sci. 103, 107 (2008);
186. David Benjamin Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899-900 (1993);
187. Russell K. Robinson, Perceptual Segregation, 109 Colum. L. Rev. 1093, 1102 (2008);
188. see also Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969, 980 (2006) (identifying that the "central focus" of existing antidiscrimination law is to prohibit "consciously biased decisionmaking");
189. Stacy E. Seicshnaydre, Is the Road to Disparate Impact Paved With Good Intentions?: Stuck on State of Mind in Antidiscrimination Law, 42 Wake Forest L. Rev. 1141, 1143-44 (2007) (criticizing courts for importing intent requirements into disparate impact cases).
190. See supra note 93. Thus, for example, an employer's decision not to promote a woman because of the employer's assumption that she would not want to relocate because of family obligations might be based on the employer's concern for the employee, but it still constitutes sex-based discrimination. Cf. Lust v. Sealy, 383 F.3d 580, 583 (7th Cir. 2004) (affirming trial verdict in favor of plaintiff after the supervisor admitted that he didn't consider recommending the plaintiff for promotion because she had children).
191. See also Back v. Hastings, 365 F.3d 107 (2d Cir. 1999) (reversing summary judgment against school district that that denied tenure to a school psychologist on the assumption that, as a young mother, she would not be able to devote herself to the job).
192. See, e.g., Int'l Bhd. Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (disparate treatment under Title VII, to which "discriminatory motive is critical," means "the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin," as contrasted with disparate impact, which involves employer practices that are facially neutral but fall more harshly on one group than another).
193. Disparate impact discrimination was first identified by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971). It was codified as part of Title VII in the Civil Rights Act of 1991. See 42 U.S.C. § 2000e-2(k) (2006).
194. See 42 U.S.C. § 1981a(a)(1) (2006). This section provides for an award of compensatory and punitive damages against a "respondent who engaged in unlawful intentional discrimination" which is then explained in parentheses immediately thereafter: "(not an employment practice that is unlawful because of its disparate impact)."
195. Kolstad v. American Dental Association, 527 U.S. 526, 535-37 (1999).
196. See Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Cal. L. Rev. 997, 1029-38 (2006) (criticizing the "honest belief" rule).
197. Of similar, claimed effect is the "same actor" inference, which permits a factfinder to conclude that the supervisor who hired the plaintiff did not later discriminate on the basis of a characteristic that would have been evident at the time of hiring. See Natasha T. Martin, Immunity for Hire: How the Same-Actor Doctrine Sustains Discrimination in the Contemporary Workplace, 40 Conn. L. Rev. 1117, 1124-38 (2008) (criticizing the "same actor" rule);
198. Julie S. Northup, The "Same Actor Inference" in Employment Discrimination Cases: Cheap Justice?, 73 Wash. L. Rev. 193 (1998) (same).
199. See, e.g., Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417-18 (7th Cir. 2006) (holding that whether employer discriminated is determined by his honest reason for taking the action).
200. Examples of the application of the honest belief rule that are criticized for their insistence upon a conscious intent requirement but which are consistent with this analysis include Johnson v. AT&T Corp., 422 F.3d 756, 762 (8th Cir. 2005);
201. Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002),
202. and Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279-80 (4th Cir. 2000), cert, denied, 531 U.S. 875 (2000).
203. For application of the same actor rule, see Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991), and cases cited in Martin, supra, note 99.
204. Cf. Banks & Ford, supra note 14, at 1087 (honest belief rule "does not make liability contingent on whether defendant consciously believed it discriminated [but] on whether the plaintiff can show that the defendant's proffered rationale was a pretext").
205. See Ricci v. DeStefano, 129 S. Ct. 2658, 2674-75 (2009) (employer's good-faith belief that its race-based actions were necessary to avoid disparate impact liability is not enough to justify taking adverse action "because of... race").
206. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (sex stereo-types);
207. Garrett v. Hewlett-Packard, 305 F.3d 1210, 1217 (10th Cir. 2002) (procedural irregularities);
208. McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (9th Cir. 1998) (hiring persons with lower job qualifications than the plaintiff);
209. Simms v. Oklahoma, 165 F.3d 1321, 1328 (10th Cir. 1999) (subjective standards);
210. Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 (1st Cir. 1999) (subjective employment practices);
211. see also EEOC v. Inland Marine Indust., 729 F.2d 1229,1236 (9th Cir. 1984) (recognizing that racial discrimination "sometimes wears a benign mask").
212. See Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 U. Colo. L. Rev. 1243, 1243 (2008).
213. 490 U.S. 228 (1989).
214. Id. at 295 (Kennedy, J., dissenting).
215. Id. at 276-77 (O'Connor, J., concurring).
216. Id. at 250 (plurality opinion).
217. Thus, even the dissenting opinion written by Justice Kennedy and joined by Chief Justice Rehnquist and Justice Scalia, while incorporating the language of discriminatory intent, states that the "ultimate question... is whether discrimination caused the plaintiffs harm." Id. at 294 (Kennedy, J., dissenting); see also id. at 295.
218. The Court in Price Waterhouse held that the employer was not liable if it could show that it would have reached the "same decision" on the basis of nondiscriminatory factors. Id. at 242. The Civil Rights Act of 1991 changed the same-decision rule, providing that liability is established under Title VII if any prohibited factor motivated the decision, see 42 U.S.C. § 2000e-2(m) (2006), but limiting damages in cases in which the employer shows that its decision was justified on the basis of a nondiscriminatory factor. See 42 U.S.C. § 2000e-5(g)(2)(B) (2006).
219. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003).
220. Id. ("Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence" (quoting Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 508 n. 17 (1957)) (citation omitted)).
221. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 518-19, 523-24 (1993) (holding that proof of pretext requires more than discrediting defendant's "nondiscriminatory" reason);
222. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659-60 (1989) (weakening business necessity standard in disparate impact cases, and shifting burden of persuasion on the issue to plaintiff);
223. see also Price Waterhouse, 490 U.S. at 262-63, 276, 278 (O'Connor, J, concurring) (asserting that in mixed motives case, plaintiff must prove that sex was the "but for" cause, using direct evidence).
224. See, e.g., Desert Palace, Inc., 539 U.S. at 92 (holding that direct evidence is not required in mixed motives case);
225. Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 147-49 (2000) (clarifying Hicks, 509 U.S. 502, to make clear that the factfinder is entitled to find for the plaintiff on the basis of the plaintiff's discrediting of the defendant's nondiscriminatory reason).
226. See, e.g., 42 U.S.C. § 2000e-2(k)(1)(A) (2006) (codifying Griggs v. Duke Power Co., 401 U.S. 424 (1971), after the Supreme Court had cut back on the decision in Wards Cove, 490 U.S. 642);
227. U.S.C. § 2000e-2(m) (2006) (establishing that plaintiff can make out mixed motives case by showing that sex was a "motivating factor").
228. See infra Section V.A.
229. See McGinley, supra note 17, at 482 ("[T]he opportunities for underestimating the incidence of discriminatory behavior are much greater than the reverse.").
230. Id. at 481-82.
231. Reeves, 530 U.S. at 147-49; Hicks, 509 U.S. at 518-19, 523-24.
232. For other examples of proposals designed to alter the proof structure to make it easier to prove implicit discrimination, see Ivan E. Bodensteiner, The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination, 73 Mo. L. Rev. 83, 108, 120-27 (2008).
233. Robinson sees this focus on perceptual differences between insiders and outsiders as an important and overlooked part of the implicit bias problem. See Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1103 (2008) (noting that implicit bias scholarship is about the psychology of privileged groups or insiders, which speaks to only part of the story of implicit bias).
234. Id. at 1167.
235. Id. at 1169 (plaintiff might receive "some form of relief, such as attorneys' fees or a portion of the damages that a prevailing plaintiff would normally recover").
236. See Oppenheimer, supra note 94, at 899 (1993).
237. See Griggs v. Duke Power Co., 401 U.S. 424, 429-31 (1971).
238. Oppenheimer, supra note 94, at 970.
239. See, e.g., Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, supra note 18;
240. see also Tristin K. Green & Alexandra Kalev, Discrimination-Reducing Measures at the Relational Level, 59 Hastings L.J. 1435, 1457 (2008) (suggesting that the law should require employers to "address relational sources of discrimination" and eliminate "extreme rigidity and segregation in job categories").
241. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, supra note 18, at 856-57.
242. Id. at 899. Susan Sturm has also argued in favor of structural workplace reform. By and large, however, Sturm focuses not on enhanced liability rules for individual plaintiffs but on other kinds of workplace accountability and institutional change. See supra note 13.
243. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, supra note 18, at 900-03. Green uses the term "accommodation mandate" to refer to employer responsibilities that stem from the obligation to anticipate the response of women and members of minority groups to existing workplace structures and to alter those structures to accommodate - and possibly interrupt - the cycle of bias. Id. at 902. The examples she gives of responsive behavior which the employer should anticipate are members of minority groups undertaking "extra identity work" to persuade others that they do not have the stereotyped characteristics attributed to them, and the lack of female interest in certain jobs which is the result of employer policies that have depressed that interest. Id. at 900-02;
244. see also Tristin K. Green, Discomfort at Work: Workplace Assimilation Demands and the Contact Hypothesis, 86 N.C. L. Rev. 379, 379-80 (2008) (arguing that employers should be required to permit people of color and women to "signal" group identification by accommodating their dress and appearance needs).
245. For a review of social norms literature, see Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 339-50 (1997).
246. See supra text accompanying notes 66-72. One of the ways law motivates changed behavior, McAdams writes, is to "signal[] on what grounds the majority will henceforth give and withhold esteem." Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003, 1081 (1995).
247. See generally Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 Va. L. Rev. 1603 (2000) (examining theories explaining why people respond positively to legal rules and social norms, and cautioning against non-falsifiable assumptions that rules and norms actually change preferences, as opposed to simply incentivize behavior).
248. See Wendy Wood, Motives and Modes of Processing in the Social Influence of Groups, in Dual-Process Theories, supra note 19, at 547, 553 (identifying interest of being true to oneself separate from interest in gaining approval of social group).
249. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 227, 229 (2000).
250. Id. at 231.
251. Id. at 230-31.
252. Id. at 231.
253. Id. at 230-32.
254. See Patricia G. Devine et al., The Regulation of Explicit and Implicit Race Bias: The Role of Motivations to Respond Without Prejudice, 82 J. Personality & Soc. Psychol. 835, 845 (2002) (noting that, in experimental studies, individuals with high levels of internal motivation and low levels of external motivation were more autonomous, and more effective in regulating race bias, even on tests involving responses that were difficult to control).
255. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 241 (citing studies).
256. Richard M. Ryan & Edward L. Deci, Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Weil-Being, 55 Am. Psychologist 68, 73 (2000) (citing studies).
257. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 241, 243, 244.
258. See John F. Dovidio et al., Reducing Contemporary Prejudice: Combating Explicit and Implicit Bias at the Individual and Intergroup Level, in Reducing Prejudice and Discrimination 137, 144-47 (Stuart Oskamp ed., 2000) (discussing evidence of ability of people who are internally motivated - or have "good intentions" - to regulate their own implicit biases).
259. Ryan & Deci, Self-Determination Theory, supra note 143, at 72.
260. Jennifer K. Bosson et al., Self-Enhancement Tendencies Among People With High Explicit Self-Esteem: The Moderating Role of Implicit Self-Esteem, 2 Self & Identity 169, 181 (2003).
261. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 251.
262. See E. Ashby Plant & Patricia G. Devine, Internal and External Motivation to Respond Without Prejudice, 75 J. Personality & Soc. Psychol. 811, 817-18, 826-27 (1998).
263. See Don Operario & Susan T. Fiske, Effects of Trait Dominance on Powerholders' Judgments of Subordinates, 19 Soc. Cognition 161, 176-77 (2001);
264. see also Stephanie A. Goodwin et al., Power Can Bias Impression Processes: Stereotyping Subordinates by Default and by Design, 3 Group Processes Intergroup Relations 227, 251 (2000) (stereotyping of subordinates by people with power explained by the motivational pressures to maintain control, rather than by inattention, cognitive load, or disinterest).
265. Richard McAdams refers to people's mistaken beliefs about other people's attitudes as "pluralistic ignorance." McAdams, An Attitudinal Theory of Expressive Law, 79 Or. L. Rev. 339, 356-57 (2000).
266. Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003, 1081 (1995).
267. See Gregory Mitchell, Second Thoughts, 40 McGeorge L. Rev. 687, 689 (2009).
268. For a careful examination of how habit moves from rote action to a conceptually integrated part of one's self-identity, see Robin R. Vallacher & Daniel M. Wegner, What Do People Think They're Doing? Action Identification and Human Behavior, 94 Psychol. Rev. 3, 4-13 (1987).
269. See Christian S. Crandall et al., Social Norms and the Expression and Suppression of Prejudice: The Struggle for Internalization, 82 J. Personality & Soc. Psychol. 359, 375 (2002) (describing research suggesting that social norms can be internalized even by the individual who suppresses prejudice in order to conform to them).
270. As put by Robert George, the law can prevent a person's "self-corruption which follows from acting out a choice to indulge in immoral conduct." Robert P. George, Making Men Moral: Civil Liberties and Public Morality 1 (1993).
271. Id. For a discussion of how other people create the normative climate for people's behavior, see Tom R. Tyler, Why People Obey the Law 24 (1990).
272. See Tyler, supra note 157, at 4, 64-65, 165; see also Oliver Wendell Holmes, The Common Law 39 (The Belknap Press of Harvard University Press 2009) (1881) ("The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong."); Tyler, supra, at 25, 36-37, 64-65 (discussing how law is ineffective when it is not taken seriously by those who wish to be law-observant).
273. Jack Knight describes the desired relation of law to existing beliefs and social norms as one of pragmatism. The idea is that law should be sufficiently rooted in society's existing beliefs so that it generates trust, and thus commands the buy-in necessary for it, in turn, to have further influence on society's beliefs. See Jack Knight, Social Norms and the Rule of Law: Fostering Trust in a Socially Diversity Society, in Trust in Society 354, 367-71 (Karen S. Cook ed., 2001).
274. E. Ashby Plant & Patricia G. Devine, Responses to Other-Imposed Pro-Black Pressure: Acceptance or Backlash?, 37 J. Experimental Soc. Psychol. 486 (2001). This response was shown by study participants with a low internal motivation to avoid prejudice; those who started with a high level of motivation to avoid prejudice did not show the same elevation of resentment or the same backlash. Id. at 498-99.
275. Robert J. Bies & Thomas M. Tripp, Beyond Distrust: "Getting Even" and the Need for Revenge, in Trust and Organizations 246, 251, 257 (Randall M. Kramer & Tom Tyler eds., 1996);
276. Robert B. Cialdini, Social Influence and The Triple Tumor Structure of Organizational Dishonesty, in Codes of Conduct: Behavioral Research Into Business Ethics 44, 56-57 (David M. Messick & Ann E. Tenbrunsel eds., 1996);
277. Edward L. Deci & Richard M. Ryan, The Support of Autonomy and the Control of Behavior, 53 J. Personality & Soc. Psychol. 1024, 1026 (1987);
278. see also Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate 53 (1992) (finding that if legal controls are too salient, corporate actors attribute their compliance to the law instead of their own ethical standards).
279. Bies & Tripp, supra note 160, at 258.
280. See Cialdini, supra note 160, at 57.
281. Ayres & Braithwaite, supra note 160, at 25; see also Alice Erh-Soon Tay, Communist Visions, Communist Realities and the Role of Law, 17 J. L. & Soc'y 155, 159-60 (1990) ("If people be led by laws ... and uniformity is sought to be given them by punishments, they will try to avoid punishments but have no sense of shame. If they be led by virtue . . . they will have a sense of shame and, moreover, will become good.") (quoting Confucius);
282. see also Milton C. Regan, Jr., Risky Business, 94 Geo. L.J. 1957, 1958 (2006) (rules designed to make lawyers act ethically will not necessarily motivate them to act ethically).
283. This research is described in Uri Gneezy & Aldo Rustichini, A Fine is a Price, 29 J. Legal Stud. 1, 13-14 (2000).
284. For citations to other research studies showing the "crowding- out" effect, see Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 Yale L.J. 273, 321-26 (2004).
285. Gneezy & Rustichini, A Fine is a Price, supra note 164, at 13-14. Conversely, being paid for something people might readily give for free may result in less giving.
286. In the context of blood donations, see Richard M. Titmuss, The Gift Relationship: From Human Blood to Social Policy (1971);
287. see also Carl Mellström & Magnus Johannesson, Crowding Out in Blood Donation: Was Titmuss Right?, 6 J. Eur. Econ. Ass'n 845 (2008) (discussing a Swedish experiment finding significant crowding-out effect of paying for blood among women but not among men).
288. This point is hotly debated but supported by the strong weight of the evidence. Compare Judy Cameron & W. David Pierce, Reinforcement, Reward, and Intrinsic Motivation: A Meta-Analysis, 64 Rev. Educ. Res. 363 (1994) (concluding that rewards only minimally decrease intrinsic motivation),
289. and Judy Cameron & W. David Pierce, The Debate About Rewards and Intrinsic Motivation: Protests and Accusations Do Not Alter the Results, 66 Rev. Educ. Res. 39 (1996) (arguing that the questions, methods and techniques used in the authors' earlier study were appropriate and that their conclusions were well-founded),
290. with Edward L. Deci, Effects of Externally Mediated Rewards on Intrinsic Motivation, 18 J. Personality & Soc. Psychol. 105 (1971) (finding that when money was used as an external reward, intrinsic motivation tended to decrease, and when verbal reinforcement and positive feedback were used, intrinsic motivation tended to increase),
291. and Edward L. Deci et al., A Meta-Analytic Review of Experiments Examining the Effects of Extrinsic Rewards on Intrinsic Motivation, 125 Psychol. Bull. 627 (1999) (concluding from a meta-analysis of 128 studies that rewards significantly undermine free-choice intrinsic motivation),
292. and Edward L. Deci et al., Extrinsic Reward and Intrinsic Motivation in Education: Reconsidered Once Again, 71 Rev. Educ. Res. 1 (2001) (finding that more recent studies support the argument that external rewards decrease intrinsic motivation).
293. See James Heyman & Dan Ariely, Effort for Payment: A Tale of Two Markets, 15 Psychol. Sci. 787, 790-91 (2004).
294. See John Staddon, Distracting Miss Daisy, 302 The Atlantic 102 (July/August 2008).
295. The failure to recognize the tendency for incentives to increase the need for incentives when norms are not internalized is the major weakness of an account of social norms that rests on incentives alone. For such an account, see Scott, supra note 134.
296. McAdams, supra note 151, at 3-24.
297. See Justine Eatenson Tinkler et al., Can Legal Interventions Change Beliefs? The Effect of Exposure to Sexual Harassment Policy on Men's Gender Beliefs, 70 Soc. Psychol. Q. 480, 491 (2007).
298. See Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 236-38.
299. Id. at 229; Ryan & Deci, Self-Determination Theory, supra note 143, at 73.
300. To measure the motivation to avoid prejudice, the Motivation to Control Prejudiced Reactions scale uses a questionnaire that asks participants to indicate on a five-point scale his or her level of agreement with such statements as, "If I were participating in a class discussion and a Black student expressed an opinion with which I disagreed, I would be hesitant to express my own viewpoint," or her level of disagreement with such statements as "I think that it is important to speak one's mind rather than to worry about offending someone." The motivation to avoid prejudice is measured by the individual's extent of agreement with such statements as, "I feel guilty when I have a negative thought or feeling about a Black person," or "I get angry with myself when I have a thought or feeling that might be considered prejudiced." Bridget C. Dunton & Russell H. Fazio, An Individual Difference Measure of Motivation to Control Prejudiced Reactions, 23 Personality & Soc. Psychol. Bull. 316, 319 (1997).
301. Tamara Towles-Schwen & Russell H. Fazio, Choosing Social Situations: The Relation Between Automatically Activated Racial Attitudes and Anticipated Comfort Interacting With African Americans, 29 Personality & Soc. Psychol. Bull. 170, 178 (2003). Possible influences of the different motivations are suggested by the fact that those with high desire to avoid dispute reported less frequent interactions in school with blacks, admitted that their exposure to blacks during childhood was primarily through television and the media, and rated their parents as more prejudiced. In contrast, those with a high concern to avoid prejudice reported parental emphasis on egalitarianism, high scores on tests of egalitarian values, and relatively positive interactions with blacks during elementary and middle school. Id. at 172.
302. Id. at 179-80.
303. Id. Another difference is that people with a strong concern for avoiding prejudice are more likely to "overcorrect" in evaluating blacks as a group, while those with a strong concern for avoiding conflict are more likely to overcorrect for judgments about individual blacks, which researchers attribute to the possibility that making a situation more personal evokes a greater likelihood that a dispute will arise. See Michael A. Olson & Russell H. Fazio, Trait Inferences as a Function of Automatically Activated Racial Attitudes and Motivation to Control Prejudiced Reactions, 26 Basic & Applied Soc. Psychol. 1, 9-10 (2004). On the overcorrection phenomenon, see supra text accompanying notes 78-87.
304. See E. Ashby Plant, Responses to Interracial Interactions Over Time, 30 Personality & Soc. Psychol. Bull. 1458, 1469-70 (2004) (people who are internally motivated to avoid prejudice have more positive relationships with people of other races, and thus have better expectancies and less anxiety about future contact). Women tend to test higher than men for internally motivated avoidance of prejudice. See Plant & Devine, supra note 149.
305. See Suzanne C. Klonis et al., Internal and External Motivation to Respond Without Sexism, 31 Personality & Soc. Psychol. Bull. 1237, 1246 (2005).
306. See, e.g., Bargh, The Cognitive Monster, supra note 19, at 362, 376, 378 (controlling the influence of unconscious stereotypes is "almost unimaginable");
307. William T. Bielby, Minimizing Workplace Gender and Racial Bias, 29 Contemp. Soc. 120, 122 (2000) ("The task is not to eliminate 'stereotypical thinking' (it can't be done), but rather to minimize its impact on personnel decisions.");
308. Timothy D. Wilson et al., Mental Contamination and the Debiasing Problem, in Heuristics and Biases: The Psychology of Intuitive Judgment 185, 190 (Thomas Gilovich et al. eds., 2002) (expressing a lack of optimism about people detecting and correcting for bias in everyday life).
309. See, e.g., Irene V. Blair, The Malleability of Automatic Stereotypes and Prejudice, 6 Personality & Soc. Psychol. Rev. 242 (2002).
310. For a review of some of the literature, see Patricia G. Devine & Margo J. Monteith, Automaticity and Control in Stereotyping, in Dual-Process Theories, supra note 19, at 339-42.
311. See, e.g., Patricia G. Devine, Stereotypes and Prejudice: Their Automatic and Controlled Components, 56 J. Personality & Soc. Psychol. 5, 6-7 (1989);
312. Daniel T. Gilbert et al., Unbelieving the Unbelievable: Some Problems in the Rejection of False Information, 59 J. Personality & Soc. Psychol. 601, 611 (1990); Mitchell, supra note 153, at 687-88.
313. Dual-process theories of stereotyping presuppose a pre-conscious (automatic) and a conscious (controlled) process, but sometimes the boundary between the two is softened by a "counterintuitive" notion that intent, will, and control "can operate without awareness." See Gordon B. Moskowitz et al. The History of Dual-Process Notions, and the Future of Preconscious Control, in Dual-Process Theories, supra note 19, at 12, 33. In this regard, one set of researchers makes a helpful distinction between "deliberative and theory-driven" correction (or "debiasing") and "rapid and nonconscious" correction (or "implicit adjustment"). See Wilson et al., supra note 180, at 185, 188-89.
314. Mitchell, supra note 153, at 695-96 (identifying a broad continuum of processes through which attitudes can change, ranging from deliberate, conscious effort, to detectable (if usually unnoticed) thoughts and habits, to unconscious thinking styles and situation-induced goals). This observation is consistent with a variety of stereotype control strategies, from suppressing them once they arise, to actively seeking out information beyond the stereotype, overriding a stereotypic response with a clearly identifiable egalitarian response, or correcting a response in a direction opposite from the presumed influence of the stereotype. Studies demonstrating these various strategies are cited in Margo J. Monteith et al., Putting the Brakes on Prejudice: On the Development and Operation of Cues for Control, 83 J. Personality & Soc. Psychol. 1029, 1030 (2002).
315. See C. Neil Macrae et al., Out of Mind but Back in Sight: Stereotypes on the Rebound, 67 J. Personality & Soc. Psychol. 808, 808-09 (1994).
316. See Kerry Kawakami et al. Just Say No (to Stereotyping): Effect of Training in the Negation of Stereotypic Associations on Stereotype Activation, 78 J. Personality & Soc. Psychol. 871 (2000); Macrae, supra note 185, at 814.
317. Macrae, supra note 185, at 811.
318. Id. at 812. Another related effect is that the effort to produce one stereotype may alter the stereotype rather than eliminate it. See Sei Jin Do et al. Sneaking in Through the Back Door: How Category-Based Stereotype Suppression Leads to Rebound in Feature-Based Effects, 44 J. Experimental Soc. Psychol. 833, 833-34 (2008). For example, pressure to reduce race-based stereotyping might lessen stereotyping of blacks whose physical and social profiles are more similar to whites, while increasing it with respect to blacks with more Afrocentric features, or weaker resumes.
319. See Michael I. Norton et al., Color Blindness and Interracial Interaction: Playing the Political Correctness Game, 17 Psychol. Sci. 949, 952 (2006).
320. Daniel M. Wegner, Ironic Processes of Mental Control, 101 Psychol. Rev. 34, 46-47 (1994).
321. The study's questions were drawn from the Attitudes Toward Women Scale developed by Spence and Helmreich. Janet T. Spence & Robert Helmreich, The Attitudes Toward Women Scale: An Objective Instrument to Measure Attitudes Toward the Rights and Roles of Women in Contemporary Society, JSAS Catalog of Selected Documents in Psychology (1972).
322. See Wegner, supra note 190, at 46-47. Wegner theorizes that this effect is caused by two different processes at work: an "operating" process that searches for mental content consistent with the desired state, and a "monitoring" process that seeks out, and thereby reinforces, inconsistent information. Id. at 34. Wegner calls this explanation "ironic process theory." Id.
323. Blair, supra note 181, at 252.
324. See Leonard S. Newman & James S. Uleman, Assimilation and Contrast Effects in Spontaneous Trait Inference, 16 Personality & Soc. Psychol. Bull. 224, 236 (1990);
325. Fritz Strack et al., Awareness of the Influence as a Determinant of Assimilation Versus Contrast, 23 Eur. J. Soc. Psychol. 53, 59 (1993).
326. See, e.g., Kerry Kawakami et al., Kicking the Habit: Effects of Nonstereotypic Association Training and Correction Processes on Hiring Decisions, 41 J. Experimental Soc. Psychol. 68, 73-74 (2005) (rote training in associating nonstereotypic traits with men and women can reduce stereotyping, unless trainees make an effort to resist training).
327. Neuberg, The Goal of Forming Accurate Impressions, supra note 55, at 378-79;
328. see also Susan T. Fiske & Steven L. Neuberg, A Continuum of Impression Formation, From Category-Based to Individuating Processes: Influences of Information and Motivation on Attention and Interpretation, in 23 Advances in Experimental Social Psychology 1, 49 (Mark P. Zanna ed., 1990);
329. Neuberg, Expectancy-Confirmation Processes, supra note 45, at 103, 111-14. On the importance of strategies that encourage people to obtain more information in order to form a more accurate assessment, see Monteith et al., supra note 184, at 1030.
330. See John Pennington & Barry R. Schlenker, Accountability for Consequential Decisions: Justifying Ethical Judgments to Audiences, 25 Personality & Soc. Psychol. Bull. 1067 (1999);
331. Philip E. Tetlock & Jennifer S. Lerner, The Social Contingency Model: Identifying Empirical and Normative Boundary Conditions on the Error-and-Bias Portrait of Human Nature, in Dual-Process Theories, supra note 19, at 578;
332. see also Leigh Ann Vaughn et al., When Two Wrongs Can Make a Right: Regulatory Nonfit, Bias, and Correction of Judgments, 42 J. Experimental Soc. Psychol. 654, 659 (2006) (accuracy instructions improve correction of bias).
333. See Boris B. Baltes et al. Does a Structured Free Recall Intervention Reduce the Effect of Stereotypes on Performance Ratings and by What Cognitive Mechanism?, 92 J. Applied Psychol. 151, 157, 159, 161 (2007) (discussing race bias);
334. Cara C. Bauer & Boris B. Baltes, Reducing the Effects of Gender Stereotypes on Performance Evaluations, 47 Sex Roles 465, 468 (2002) (discussing gender bias).
335. Adam D. Galinsky & Gordon B. Moskowitz, Perspective-Taking: Decreasing Stereotype Expression, Stereotype Accessibility, and In-Group Favoritism, 78 J. Personality & Soc. Psychol. 708, 720 (2000).
336. For articles on dual-process theories of overcoming prejudice, see Dual-Process Theories in Social Psychology, supra note 183. The two stages are sometimes distinguished as System I and System II thinking. See Jolls & Sunstein, supra note 94, at 975;
337. Daniel Kahneman & Shane Frederick, Representativeness Revisited: Attribute Substitution in Intuitive Judgment, in Heuristics and Biases: The Psychology of Intuitive Judgment, supra note 180, at 49, 50. Gregory Mitchell characterizes the difference as "initial thoughts" and "second thoughts." Mitchell, supra note 153, at 687-88. For another distinction, see supra note 183.
338. Galinsky & Moskowitz, supra note 198, at 709, 720 (describing how perspective-taking motivates people by increasing the overlap between the self and the target of the perspective-taking).
339. On the connection between the internalization of motivation and its effect on efforts to reduce bias, see Crandall et al., supra note 155, at 372-73; M. Michelle Peruche & E. Ashby Plant, Racial Bias in Perceptions of Athleticism: The Role of Motivation in the Elimination of Bias, 24 Soc. Cognition 438, 449-50 (2006).
340. The research is summarized in Gaertner et al., supra note 23, at 391-92. See also Gaertner & Dovidio, Understanding and Addressing Contemporary Racism, supra note 8, at 615, 633 (promoting positive thoughts works better than avoiding negative ones to improve interracial attitudes). For a more specific application of this point, see infra text accompanying notes 287-292.
341. See Michael A. Olson & Russell H. Fazio, Reducing Automatically Activated Racial Prejudice through Implicit Evaluative Conditioning, 32 Personality & Soc. Psychol. Bull. 421, 429 (2006). The effects persisted throughout a two-day separation between the conditioning procedure and the administration of the IAT. Id.
342. See Nilanjana Dasgupta & Anthony G. Greenwald, On the Malleability of Automatic Attitudes: Combating Automatic Prejudice With Images of Admired and Disliked Individuals, 81 J. Personality & Soc. Psychol. 800, 806-07 (2001). The effect persisted when tested twenty-four hours later. Id. at 807.
343. See Bernd Wittenbrink et al. Spontaneous Prejudice in Context: Variability in Automatically Activated Attitudes, 81 J. Personality & Soc. Psychol. 815, 817, 823-24 (2001).
344. See Russell H. Fazio et al., Variability in Automatic Activation as an Unobtrusive Measure of Racial Attitudes: A Bona Fide Pipeline?, 69 J. Personality & Soc. Psychol. 1013 (1995);
345. Brian S. Lowery et al., Social Influence Effects on Automatic Racial Prejudice, 81 J. Personality & Soc. Psychol. 842, 845 (2001). The Lowery study, however, showed no reduction in automatic prejudice by Asian-American test-takers as measured by the IAT, except in a subsequent experiment in which some participants were instructed to avoid prejudice (or not) in the presence of the black experimenter. Id. at 847-49.
346. In one experiment, negative black stereotypes diminished after participants were exposed to a videotape of an interview with a black person for an average of ten minutes or more. See Ziva Kunda et al., The Dynamic Time Course of Stereotype Activation: Activation, Dissipation, and Resurrection, 82 J. Personality & Soc. Psychol. 283, 295 (2002). In this study, the staging of even a relatively trivial disagreement with the interviewee resurrected the stereotype, as measured in a test for implicit bias, but the activation of the stereotype did not appear to affect the participants' evaluation of the interviewee; in other words, stereotypes were activated, but apparently suppressed. Id. at 295-96.
347. See Nilanjana Dasgupta & Shaki Asgari, Seeing is Believing: Exposure to Counterstereotypic Women Leaders and Its Effect on the Malleability of Automatic Gender Stereotyping, 40 J. Experimental Soc. Psychol. 642, 653-54 (2004);
348. see also M. Elizabeth Tidball et al. Taking Women Seriously: Lessons and Legacies for Educating the Majority (1999) (finding a strong link between frequency of counterstereotypic female role models on campus (for example, faculty, administrators, and peers) and the cultivation of students' commitment to counterstereotypic careers).
349. Irene V. Blair et al., Imagining Stereotypes Away: The Moderation of Implicit Stereotypes Through Mental Imagery, 81 J. Personality & Soc. Psychol. 828, 837 (2001).
350. For a review of other studies, see Blair, The Malleability of Automatic Stereotypes and Prejudices, supra note 181, at 248-49.
351. Dasgupta & Greenwald, supra note 204, at 806-07 (improved effect of images of admired blacks and dislike whites on automatic stereotypes was significantly diminished twenty-four hours later).
352. On the concept of "construct-accessibility," see E. Tory Higgins & Gillian King, Accessibility of Social Constructs: Information-Processing Consequences of Individual and Contextual Variability, in Personality, Cognition, and Social Interaction 69, 71 (Nancy Cantor & John F. Kihlstrom eds, 1981);
353. Thomas K. Srull & Robert S. Wyer, Jr., Category Accessibility and Social Perception: Some Implications for the Study of Person Memory and Interpersonal Judgments, 38 J. Personality & Soc. Psychol. 841 (1980).
354. See supra text accompanying notes 46 and 55.
355. In addition to the social psychology experiments demonstrating this phenomenon, there is some physiological support. See E.A. Phelps et al., Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J. Cognitive Neuroscience 729, 733-34 (2000) (while the amygdalae of whites typically over-react to black faces in experimental settings, they do not do so with famous black faces). For citations to research on strategies to promote the generalization of counterstereotypes, see infra note 238.
356. See Luigi Castelli & Silvia Tomelleri, Contextual Effects on Prejudiced Attitudes: When the Presence of Others Leads to More Egalitarian Responses, 44 J. Experimental Soc. Psychol. 679, 683-84 (2008).
357. Robinson, supra note 8, at 1177.
358. See Daisuke Akiba & Payneese Miller, The Expression of Cultural Sensitivity in the Presence of African Americans: An Analysis of Motives, 35 Small Group Res. 623, 637 (2004).
359. See Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. Personality & Soc. Psychol. 597, 603-06 (2006).
360. See Lowery et al,, supra note 206, at 843; Stacey Sinclair et al., Social Tuning of the Self: Consequences for the Self-Evaluations of Stereotype Targets, 89 J. Personality & Soc. Psychol. 160 (2005). Social tuning is exhibited even in simple exchanges, such as when people use social categorization cues (such as accents and clothing) to determine how to respond to a request for local directions.
361. See Ellen A. Isaacs & Herbert H. Clark, References in Conversation Between Experts and Novices, 116 J. Experimental Psychol.: Gen. 26, 31 (1987).
362. See Castelli & Tomelleri, supra note 214, at 684; see also Crandall et al., supra note 155, at 361; Gretchen B. Sechrist & Charles Stangor, Perceived Consensus Influences Intergroup Behavior and Stereotype Accessibility, 80 J. Personality & Soc. Psychol. 645, 651 (2001).
363. See Sinclair et al., Social Tuning of the Self, supra note 218. These attitudes can be either positive or negative ones. See Castelli & Tomelleri, supra note 214, at 684; see also Crandall et al., supra note 155, at 361; Sechrist & Stangor, supra note 219, at 651.
364. Stacey Sinclair et al., Social Tuning of Automatic Racial Attitudes: The Role of Affiliative Motivation, 89 J. Personality & Soc. Psychol. 583, 584 (2005);
365. see also Richard Y. Bourhis, Power, Gender, and Intergroup Discrimination: Some Minimal Group Experiments, in The Psychology of Prejudice, supra note 38, at 200 (making the same conclusion with respect to gender bias);
366. Jennifer A. Richeson & Nalini Ambady, Effects of Situational Power on Automatic Racial Prejudice, 39 J. Experimental Soc. Psychol. 177 (2003) (noting that in experimental studies, people assigned superior roles tend to register higher on implicit race bias tests and exhibit more stereotyping behavior when evaluating others as compared to those who hold equal or subordinate status with those they are evaluating). The differential effects may be related to why interaction between individuals who function as equals is more successful in reducing prejudice than in hierarchical relationships. See infra text accompanying note 232; see also supra, text accompanying note 150 (people who need to dominate situations are more prone to biased evaluations of others).
367. See, e.g., Bruno Lasker, Race Attitudes in Children 371 (1929);
368. see also Muzafer Sherif & Carolyn W. Sherif, Groups in Harmony and Tension 94-95 (1953) (developing "group norm theory" to explain the pressures on individuals to conform to group norms); Sechrist & Stangor, supra note 219 at 645.
369. See Sherif & Sherif, supra note 222; see also Crandall et al., supra note 155, at 361 (concluding that social norms are strong predictors of expressed prejudice).
370. See, e.g., Fletcher A. Blanchard et al., Condemning and Condoning Racism: A Social Context Approach to Interracial Settings, 79 J. Applied Psychol. 993, 995 (1994) (hearing another student condemn racism, or condone it);
371. Fletcher A. Blanchard et al., Reducing the Expression of Racial Prejudice, 2 Psychol. Sci. 101, 101-03 (1991) (hearing another student express their views about a campus incident with potential race overtones); Sechrist & Stangor, supra note 220, at 649-51 (being told of the racial views of other students).
372. Charles Stangor et al. Changing Racial Beliefs by Providing Consensus Information, 27 Personality & Soc. Psychol. Bull. 486, 489-90 (2001).
373. Id. at 492-93.
374. Id. at 491-92.
375. See Stephen C. Wright et al., The Extended Contact Effect: Knowledge of Cross-Group Friendships and Prejudice, 73 J. Personality & Soc. Psychol. 73, 74 (1997).
376. Stangor et al., supra note 225, at 493.
377. Sechrist & Stangor, supra note 219, at 649.
378. Dovidio et al., supra note 145, at 147; see Allport, supra note 38, at 281. Much research has affirmed the basic principles of the contact hypothesis. For reviews and updates, see On the Nature of Prejudice: Fifty Years After Allport 8-9 (John F. Dovidio et al. eds., 2005);
379. John F. Dovidio et al., Intergroup Bias: Status, Differentiation, and a Common In-Group Identity, 75 J. Personality & Soc. Psychol. 109, 109-10 (1998);
380. Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of Intergroup Contact Theory, 90 J. Personality & Soc. Psychol. 751, 751 (2006).
381. Thomas F. Pettigrew & Linda R. Tropp, Allport's Intergroup Contact Hypothesis: Its History and Influence, in On the Nature of Prejudice, supra note 231, at 265.
382. Id.; David W. Johnson & Roger T. Johnson, The Three Cs of Reducing Prejudice and Discrimination, in Reducing Prejudice and Discrimination 239, 249 (Stuart Oskamp ed., 2000) (concluding a meta-analysis of 180 studies shows strong effect of cooperative experiences over competitive ones in reducing prejudice).
383. Johnson & Johnson, supra note 233, at 249.
384. See, e.g., Cecilia L. Ridgeway & Lynn Smith-Lovin, The Gender System and Interaction, 25 Ann. Rev. Soc. 191, 209 (1999) (noting male-female interactions that are status-ordered "continually refresh[]" gender status beliefs).
385. See Samuel L. Gaertner et al., How Does Cooperation Reduce Intergroup Bias?, 59 J. Personality & Soc. Psychol. 692 (1990).
386. See generally Gaertner & Dovidio, Reducing Intergroup Bias: The Common Ingroup Identity Model, supra note 51.
387. See Rupert Brown et al., Changing Attitudes Through Intergroup Contact: The Effects of Group Membership Salience, 29 Eur. J. Soc. Psychol. 741 (1999);
388. Matthew J. Hornsey & Michael A. Hogg, Assimilation and Diversity: An Integrative Model of Subgroup Relations, 4 Personality & Soc. Psychol. Rev. 143, 148 (2000);
389. Alberto Voci & Miles Hewstone, Intergroup Contact and Prejudice Toward Immigrants in Italy: The Mediational Role of Anxiety and the Moderational Role of Group Salience, 6 Group Processes & Intergroup Rel. 37, 38-39 (2003);
390. see also Christopher Wolsko et al., Framing Interethnic Ideology: Effects of Multicultural and Color-Blind Perspectives on Judgments of Groups and Individuals, 78 J. Personality & Soc. Psychol. 635, 648-49 (2000) (describing experiments suggesting that multi-cultural framework led to stereotypes that were stronger than those generated by color-blind perspective, but also more accurate and more attentive to individuating information).
391. Alberto Voci & Miles Hewstone, supra note 238, at 37-38.
392. See Nurcan Ensari & Norman Miller, The Out-Group Must Not Be So Bad After All: The Effects of Disclosure, Typicality, and Salience on Intergroup Bias, 83 J. Personality & Soc. Psychol. 313, 325 (2002);
393. Thomas F. Pettigrew, Intergroup Contact Theory, 49 Ann. Rev. Psychol. 65, 72 (1998).
394. The importance of self-disclosure in improving explicit attitude toward members of other groups through empathy and trust is explored in Rhiannon N. Turner et al., Reducing Explicit and Implicit Outgroup Prejudice Via Direct and Extended Contact: The Mediating Role of Self-Disclosure and Intergroup Anxiety, 93 J. Personality & Soc. Psychol. 369, 383-84 (2007).
395. See Thomas F. Pettigrew, Generalized Intergroup Contact Effects on Prejudice, 23 Personality & Soc. Psychol. Bull. 173, 174 (1997) (describing "deprovincialization");
396. Pettigrew & Tropp, A Meta-Analytic Test of Intergroup Contact Theory, supra note 231, at 766 (concluding based upon a meta-analysis that attitudes changed from intergroup contact generalize to other members of the outgroup and in other situations).
397. See Lindsey Clark Levitan & Penny S. Visser, The Impact of the Social Context on Resistance to Persuasion: Effortful Versus Effortless Responses to Counter-Attitudinal Information, 44 J. Experimental Soc. Psychol. 640, 646 (2007).
398. See supra Section II.A.
399. See id.
400. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) ("good intent or absence of discriminatory intent does not redeem" practices that violate Title VII).
401. See supra Section II.B.
402. McGinley, supra note 17, at 482.
403. For examples of possible fact situations, see supra text accompanying note 121.
404. See Krieger & Fiske, supra note 99, at 1034-38 (criticizing the "honest belief" rule).
405. At one time, proving the lie was not enough. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). This rule was reversed in Reeves v. Sanderson Plumbing Products., Inc., 530 U.S. 133, 134 (2000), holding that an inference of discrimination could be made based on the lie, although the inference is not required.
406. Robinson, supra note 8, at 1166-67.
407. See Wax, The Discriminating Mind, supra note 12.
408. Oppenheimer, supra note 94, at 970.
409. Green, supra note 18, at 856-57, 899-903.
410. Dukes et al. v. Wal-Mart Stores, Inc., 474 F.3d 1214 (9th Cir. 2007), granting rehearing en banc 556 F.3d 919 (9th Cir. 2009) (certifying a class of 1.5 million female employees of Wal-Mart who alleged systematic discrimination in hiring and promotion practices).
411. Cialdini, supra note 160, at 56-57; see supra text accompanying note 160.
412. See Richard H. Thaler & Cass R. Sunstein, Nudge (2008) (urging more thoughtfulness to how decisions are structured for people, to encourage them to make decisions that are best for themselves and others).
413. See infra Section V.B.
414. See Ian Ayres, Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination 424-25 (2001) (advocating IAT scores as a criterion for hiring both governmental and nongovernmental actors); Kang & Banaji, supra note 5, at 1091. Some have even argued in favor of using the IAT test in the course of litigation, as probative of whether the defendant discriminated.
415. See Audrey J. Lee, Unconscious Bias Theory in Employment Discrimination Litigation, 40 Harv. C.R.-C.L. L. Rev. 481, 501-02 (2005).
416. For the same reason, the suggested use of required, "de- biasing" Screensavers is equally unpromising. For the suggestion, see Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1536-37 (2005). Voluntary IAT testing and Screensavers are, of course, another matter.
417. Alexandra Kalev et al., Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies, 71 Am. Soc. Rev. 589, 611 (2006).
418. See, e.g., Samuel B. Bacharach et al., Diversity and Homophily at Work: Supportive Relations Among White and African-American Peers, 48 Acad. Mgmt. J. 619, 620 (2005).
419. Green & Kalev, supra note 34, at 1445-49.
420. Id. at 1450-52.
421. See Devine & Monteith, supra note 181, at 346; Fiske, supra note 44, at 364; Wilson & Brekke, supra note 180, at 119-20; see also Jack Glaser & Eric D. Knowles, Implicit Motivation to Control Prejudice, 44 J. Experimental Soc. Psychol. 164, 171 (2008) (noting that people's implicit belief that they are prejudiced moderates the effect of unconscious stereotypes).
422. See, e.g., Faye J. Crosby & Susan Clayton, Affirmative Action: Psychological Contributions to Policy, 1 Analyses Soc. Issues & Pub. Pol'y 71, 81 (2001).
423. Rebecca S. Bigler, The Use of Multicultural Curricula and Materials to Counter Racism in Children, 55 J. Soc. Issues 687, 699-701 (1999) (concluding that diversity training often heightens rather than reduces race bias in children, and that use of counterstereotypes within the curriculum and more attention to tasks requiring children to attend to similarities and differences among individuals of different races would be more effective);
424. Susan Bisom-Rapp, An Ounce of Prevention Is a Poor Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law, 22 Berkeley J. Emp. & Lab. L. 1, 4 (2001) (noting little evidence that education and training programs work and arguing that they may have a polarizing effect on employee attitudes); Kalev et al., supra note 261, at 593-94 (reviewing studies);
425. see also James A. Banks, Multicultural Education: Its Effects on Students' Racial and Gender Role Attitudes, in Handbook of Research on Multicultural Education 617, 624 (James A. Banks & Cherry A. McGee Banks eds., 1995) (concluding that the effects of multicultural education programs are "inconsistent").
426. See Bonita London et al., Studying Institutional Engagement: Utilizing Social Psychology Research Methodologies to Study Law Student Engagement, 30 Harv. J.L. & Gender 389, 395 (2007) (noting that law students recognize the value of diversity, but they fail to successfully integrate in their own voluntary intergroup actions).
427. Gaertner & Dovidio, Understanding and Addressing Contemporary Racism, supra note 8, at 626.
428. See supra text accompanying notes 136-139; see also Laurie A. Rudman et al., "Unlearning" Automatic Biases: The Malleability of Implicit Prejudice and Stereotypes, 81 J. Personality & Soc. Psychol. 856, 857 (2001) (noting that people "perceive a threat to their freedom of expression or [are] offended by the implication that they are prejudiced").
429. They appear to be especially unpopular among male employees. See Deborah L. Kidder et al., Backlash Toward Diversity Initiatives: Examining the Impact of Diversity Program Justification, Personal and Group Outcomes, 15 Int'l J. Conflict Mgmt. 77, 93 (2004) (noting that women are more positive than men toward diversity-related programs);
430. Sara Rynes & Benson Rosen, A Field Survey of Factors Affecting the Adoption and Perceived Success of Diversity Training, 48 Personnel Psychol. 247, 262 (1995) (reporting that men perceive diversity programs as less successful than women do).
431. See Patricia G. Devine et al., Breaking the Prejudice Habit: Progress and Obstacles, in Reducing Prejudice and Discrimination 185, 193 (Stuart Oskamp ed., 2000) (recounting reports of senior Texaco executives' derision of their own diversity training programs).
432. See Kawakami et al., Kicking the Habit, supra note 194, at 74.
433. See Fiske & Neuberg, supra note 195, at 38, 46-49; Norman Miller, Personalization and the Promise of Contact Theory, 58 J. Soc. Issues 387, 391 (2002). One refinement on this general principle is that one-on-one competition appears to facilitate individuating impressions of opponents, while group-on-group competition fosters stereotyping.
434. See Fiske et al., The Continuum Model, supra note 36, at 242.
435. See Gerhard Daday & Beverly Burris, Technocratic Teamwork: Mitigating Polarization and Cultural Marginalization in an Engineering Firm, in The Transformation of Work 241, 254, 257 (Steven P. Vallas ed., 2001);
436. see also Laurel Smith-Doerr, Women's Work: Gender Equality vs. Hierarchy in the Life Sciences 28-29, 147-48 (2004) (noting that women and minority scientists are more productive and do better in a network structures);
437. Vicki Smith, Employee Involvement, Involved Employees: Participative Work Arrangements in a White-Collar Service Occupation, 43 Soc. Probs. 166, 177-78 (1996) (concluding that employee involvement programs benefit minorities by improving white-collar interactional skill sets).
438. See, e.g., Ian M. Taplin, Flexible Production, Rigid Jobs: Lessons from the Clothing Industry, 22 Work & Occupations 412, 416-17 (1995).
439. Bielby, supra note 180, at 125-26.
440. Tetlock & Lerner, supra note 196, at 581-82
441. See Pennington & Schlenker, supra note 196, at 1078.
442. Tetlock & Lerner, supra note 196, at 572 ("Accountability can affect not only what people say they think, but also how they actually do think."); see also Fiske & Neuberg, supra note 195, at 41-42 (collecting studies that link the desire to form an accurate impression with an awareness that the impression will be shared); Pennington & Schlenker, supra note 196, at 1076-80 (describing the effects of knowing to which audience the study participants would have to defend their decision in a face-to-face meeting even when the anticipated meeting was cancelled before the participants wrote their decisions).
443. Tetlock and Lerner note, for example, that the decisionmaker will not want to create dissonance with his own self-concept or to appear to others to be hypocritical or sycophantic. Tetlock & Lerner, supra note 196, at 575. It is also important that the people to whom they are accountable act consistently themselves with the norms they articulate. See Tony Simons et al., Racial Differences in Sensitivity to Behavioral Integrity: Attitudinal Consequences, In-Group Effects, and "Trickle Down" Among Black and Non-Black Employees, 92 J. Applied Psychol. 650, 658 (2007); Tetlock & Lerner, supra note 196 at 577.
444. Philip E. Tetlock, Accountability and the Perseverance of First Impressions, 46 Soc. Psychol. Q. 285, 290 (1983);
445. Philip E. Tetlock & Jae Il Kim, Accountability and Judgment Processes in a Personality Prediction Task, 52 J. Personality & Soc. Psychol. 700, 706 (1987); Tetlock & Lerner, supra note 196, at 577-78.
446. Tetlock & Lerner, supra note 196, at 572.
447. Id. at 576-77.
448. See id. at 581-82. Thus, rewards that are unexpected are better than bribes because they make the individual feel more responsible for the achievement. See Deci et al., Extrinsic Reward and Intrinsic Motivation in Education, supra note 166, at 13-14.
449. Cf. Sturm, The Architecture of Inclusion, supra note 13, at 314 (describing how National Science Foundation builds relationship with grantees around trust, collaboration, risk-taking, and experimentation).
450. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 234-35 (citing studies); see also sources in supra note 202.
451. See supra text accompanying notes 68-72.
452. See Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 235.
453. See Deci et al., Extrinsic Reward and Intrinsic Motivation in Education, supra note 166, at 3, 12.
454. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 238 (citing studies). So does acknowledging people's feelings that the activity is not interesting. Id.
455. See Ryan & Deci, Self-Determination Theory and the Facilitation of Intrinsic Motivation, supra note 143, at 70 (citing studies).
456. Margo J. Monteith, Self-Regulation of Prejudiced Responses: Implications for Progress in Prejudice-Reduction Efforts, 65 J. Personality & Soc. Psychol. 469, 473, 477 (1993). They also responded more slowly to jokes about gays. Id. at 482.
457. Id. They also showed no moderation in their reaction to the homophobic jokes. Id. For other research developing the self-regulatory model of prejudice reduction, see Monteith et al., supra note 184; Margo J. Monteith & Aimee Y. Mark, Changing One's Prejudiced Ways: Awareness, Affect, and Self-Regulation, 16 Eur. Rev. Soc. Psychol. 113 (2005).
458. Devine et al., supra note 272, at 188-92.
459. Id. at 193-200.
460. See Fiske, Stereotyping, Prejudice, and Discrimination, supra note 44, at 390-91.
461. See Roy F. Baumeister et al. Personal Narratives About Guilt: Role in Action Control and Interpersonal Relationships, 17 Basic & Applied Soc. Psychol. 173, 187-88 (1995);
462. Cheryl R. Kaiser & Carol T. Miller, Stop Complaining! The Social Costs of Making Attributions to Discrimination, 27 Personality & Soc. Psychol. Bull. 254 (2001); Monteith & Mark, supra note 294, at 146-47.
463. See Alexander M. Czopp et al., Standing Up for a Change: Reducing Bias Through Interpersonal Confrontation, 90 J. Personality & Soc. Psychol. 784, 785, 791 (2006) (reporting studies and further research indicating that even though hostile confrontations produced negative evaluations of the confronter, they also seemed to curb subsequent stereotyping); Monteith & Mark, supra note 294, at 147.
464. See Kaiser & Miller, supra note 298, at 261.
465. See Czopp & Monteith, supra note 1, at 541. According to one study, confrontations of whites by other whites are less expected, less threatening, and more trustworthy, and thus more likely to promote a processing of the message. Id. at 534, 542; see also Richard E. Petty et al., Individual Versus Group Interest Violation: Surprise as a Determinant of Argument Scrutiny and Persuasion, 19 Soc. Cognition 418, 430 (2001) (noting that people are considered more trustworthy when they advocate positions against their own self-interest, but not when they advocate positions against group interest). Still, some researchers conclude that confrontations may have positive long-term effects "through a sustained, strategic, and collective effort," even if they cause short-term resistance. Czopp & Monteith, supra note 1, at 541.
466. Czopp & Monteith, supra note 1, at 540-42.
467. Id. at 541. "High-prejudice people may be more influenced by [appeals to] universal norms of fairness and egalitarianism." Id. at 542. Both high- and low-prejudice people felt more guilty and more uncomfortable when confronted about a biased response against blacks than when the response was against women. Id. at 541-42.
468. See, e.g., Madeline E. Heilman & Brian Welle, Disadvantaged by Diversity? The Effects of Diversity Goals on Competence Perceptions, 36 J. Applied Soc. Psychol. 1291, 1292 (2006); Kidder et al., supra note 271;
469. Miriam G. Resendez, The Stigmatizing Effects of Affirmative Action: An Examination of Moderating Variables, 32 J. Applied Soc. Psychol. 185, 202 (2002).
470. See Ayres & Braithwaite, supra note 160, at 50 ("Just as strong external incentives retard internalization, using reasoning in preference to power-assertion tends to promote it."); David A. Harrison et al., Understanding Attitudes Toward Affirmative Action Programs in Employment: Summary and Meta-Analysis of 35 Years of Research, 91 J. Applied Psychol. 1013, 1030 (2006) (conducting a meta-analysis of studies highlighting the importance of people understanding reasons for affirmative action plans);
471. Orlando C. Richard & Susan L. Kirby, Women Recruits' Perceptions of Workforce Diversity Program Selection Decisions: A Procedural Justice Examination, 28 J. Applied Soc. Psychol. 183, 184-87 (1998) (reporting that women given justification for diversity hiring suffer less negative self-perceptions than when given no justification); see also supra text accompanying note 159.
472. See Kidder et al., supra note 271, at 93.
473. See Russell Cropanzano et al., Organizational Justice and Black Applicants' Reactions to Affirmative Action, 90 J. Applied Psychol. 1168, 1179-81 (2005);
474. Heather Golden et al., Reactions to Affirmative Action: Substance and Semantics, 31 J. Applied Soc. Psychol. 73, 77, 80-82 (2001) (concluding that plans perceived as monitoring plans are better accepted than preferential hiring); Harrison et al., supra note 305, at 1020-28 (highly prescriptive affirmative action plans create greater resistance); Kidder, supra note 271, at 85, 88-89 (business priority justification associated with greater support toward affirmative action than concern about meeting affirmative action goals to adhere to EEOC guidelines for minority representation).
475. See Harrison et al., supra note 305, at 1020-28 (concluding that the rationale of better representation of underrepresented groups decreased support for affirmative action, especially among those who perceive that the plan is not in their self-interest, and when the plan is highly prescriptive).
476. See, e.g., Posting of Barry Friedman to The Plank, http://www.tnr.com/ blog/the-plank/why-lsquoriccirsquo-should-frighten-democrats (June 30, 2009, 14:19 EST) (arguing that Ricci, because of its sympathetic plaintiff-victim, revives Americans' ambivalence toward affirmative action and thus may weaken their commitment to it);
477. see also Posting of Ed Kilgore to FiveThirtyEight, http://www. fivethirtyeight.com/2009/06/obama-sptomayor-and-affirmative-action.html (June 30, 2009, 17:09 EST) (showing that 65 percent of public support white firefighters in suit against New Haven, even though a Quinnipiac poll shows that 63 percent support affirmative action as long as rigid quotas are ruled out) (URL correct as displayed).
478. See Lani Guinier & Susan Sturm, Trial by Firefighters, N.Y. Times, July 11, 2009, at A17.
479. 129 S. Ct. 2658 (2009).
480. See, e.g., Green & Kalev, supra note 34; Sturm, Second Generation Employment Discrimination, supra note 13, at 461-63;
481. Sturm, The Architecture of Inclusion, supra note 13, at 249.
482. See, e.g., Susan Bisom-Rapp, Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law Practice, 26 Fla. St. U. L. Rev. 959, 962 (1999) (noting that preventative institutional practices undertaken to limit legal liability "may mask rather than eliminate some discriminatory decisions");
483. Lauren B. Edelman, Law at Work: The Endogenous Construction of Civil Rights, in Handbook of Employment Discrimination Research: Rights and Realities 337, 340-45 (Laura Beth Nielsen & Robert L. Nelson eds., 2005) (arguing that law is transformed by the organizational institutions that it is designed to control);
484. Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, 97 Am. J. Soc. 1531, 1542-43 (1992) ("symbolic responses" occur when employers influence the meaning of employment discrimination laws through the internal procedures and structures they develop to comply with those laws);
485. Lauren B. Edelman & Mark C. Suchman, When the "Haves" Hold Court: Speculations on the Organizational Internalization of Law, 33 L. & Soc'y Rev. 941, 985 (1999) (repeat player organizations annex law for their own purposes);
486. Kimberly D. Krawiec, Cosmetic Compliance and the Failure of Negotiated Governance, 81 Wash. U. L. Q. 487, 487 (2003) (internal compliance mechanisms "may largely serve a window-dressing function that provides both market legitimacy and reduced legal liability");
487. see also Bisom-Rapp, An Ounce of Prevention, supra note 267 at 27-29 (courts increasingly treat education and training programs as evidence of nondiscrimination, which represents acceptance of form over substance).
488. See Susan Sturm, Law's Role in Addressing Complex Discrimination, in Handbook of Employment Discrimination Research: Rights and Realities 35 (Laura Beth Nielsen & Robert L. Nelson eds., 2005);
489. Susan Sturm, Second Generation Employment Discrimination, supra note 13.
490. See Frank Dobbin & Alexandra Kalev, The Architecture of Inclusion: Evidence From Corporate Diversity Programs, 30 Harv. J.L. & Gender 279, 292, 294-95, 300-01 (2007) (corporate context);
491. Susan Sturm, The Architecture of Inclusion, supra note 13, at 247, 251, 300, 312-13 (in educational setting).
492. In their study of the characteristics that make diversity programs effective in the corporate world, Professors Frank Dobbin and Alexandra Kalev identify strong leadership as a key component. See Dobbin & Kalev, supra note 316, at 295.
493. Deci & Ryan, The "What" and "Why" of Goal Pursuits, supra note 20, at 238.
494. See Sturm, The Architecture of Inclusion, supra note 13, at 323-27. Sturm describes and analyzes the National Science Foundation's ADVANCE program for increasing the number of women in science and engineering. The program uses institutional transformation grants to support institutional change through data collection, data analysis, self-study, integrated strategies for improvement, monitoring and program assessment, and sharing of best practices. See id. at 277-334;
495. see also David A. Thomas & Robin J. Ely, Making Differences Matter: A New Paradigm for Managing Diversity, Harv. Bus. Rev., Sept.-Oct. 1996, at 79, 85-87 (urging paradigm for inclusive workplace that provides opportunities for personal development, makes workers feel valued, and creates an expectation of high performance).
496. McGinley, ¡Viva La Evolucion!, supra note 17 at 482.