Employee Rights and Employment Policy Journal

Is Cognitive Bias at Work A Dangerous Condition on Land?

By
Marc R. Poirier

Abstract

Antidiscrimination law is mired in the model of a tort that involves invidious intent. Cognitive psychology and social psychology show that injuries resulting from stereotyping and cognitive bias in the workplace are prevalent, but they do not fit well with an intent-based model. Current legal doctrine may be capacious enough to accommodate non-intent based theories, as a number of authorities have argued. Yet resistance to non-intent based liability seems to persist on the ground, in the minds of judges and lawyers. This essay suggests that part of the problem may be an unexamined underlying metaphor of discrimination as "A hits B". The essay taking seriously the notion of negligent discrimination, articulated by David Oppenheimer, and develops an alternative metaphor for nonreflective discrimination that will move us away from problematic entailments of an "A negligently hits B" metaphor. The essay recommends turning to models of liability based on the ownership and control of land that contains a dangerous condition. It considers both one version of common law liability for dangerous conditions on land, and modern regulatory statutes imposing liability to address toxic contamination based on ownership and control of property. The essay also critiques Amy Wax's use of an industrial accident metaphor for unreflective discrimination, arguing that it privileges exactly the wrong parts of the issue of nonreflective discrimination and obscures the validity of an appropriately tailored negligence model.