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May 19, 2010


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It sounds a little like Shin's paper is an exercise in futility. Why bother bringing up such an important question and all its various parts if you're not going to offer some sort of solution?

Kim Krawiec

I don’t think that it is, Joe. Admittedly, the exercise is a fairly abstract one, but an abstraction worth considering in some depth in the case of liability for unconscious bias. The reason for that, I think, is that debates about liability for unconscious bias typically become bogged down with empirical disputes about whether such bias exists, the extent to which it actually impacts behavior, whether it could be proven in any given case, whether people can be “de-biased” or the behavior corrected, and so on. By assuming away these currently intractable problems, Shin lasers in on a point that has been given relatively little serious consideration – assuming it existed, and could be proven, and that liability would increase equality, should liability for implicit bias attach? The answer to that, as Shin points out, is surprisingly difficult. But if one thinks the answer is “yes,” then Shin’s argument is that this is a complete reconceptualization of discrimination law – not just an incremental evolution as some have argued – and would logically imply the possibility of liability for structural inequality not of the prospective employer’s own making. The paper is not an easy read and I’ve skipped some nuance here, as the issues Shin is tackling are quite difficult -- but I think it’s a worthwhile endeavor. I would not have blogged about it in such depth if I didn’t think so.

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