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4 - Torts

Implicit Bias–Inspired Torts

Published online by Cambridge University Press:  05 June 2012

Justin D. Levinson
University of Hawaii, School of Law
Robert J. Smith
University of North Carolina, School of Law
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Bias based on race, religion, gender, color, national origin, ancestry, disability, sexual orientation, physical appearance, and a myriad of other largely immutable characteristics is still ubiquitous today. These biases are not as easy to detect as old-fashioned, explicit racism (even for the beholder). Yet twenty-first century bias has the same old consequences: employment discrimination; discriminatory charges, arrests, prosecutions, convictions, and sentences; defamation and invasion of privacy; and harassment and other interpersonal antisocial conduct, such as ostracism. The loss of employment opportunities, liberty infringement, emotional pain, and other harm caused by the constant manifestations of implicit bias are unquantifiable. Because most of us are oblivious to this social problem, proactive measures to combat the injustices that flow from implicit bias have yet to be initiated on a meaningful scale.

Implicit bias is a social issue, not an individual problem. Accordingly, it is socially desirable to expose implicit bias and instigate public discourse concerning its pervasiveness and harmful social effects. The benefit to victims is self-evident, but perpetrators and all members of society stand to gain self-awareness through enlightenment about the inner workings of their minds, which may be contrary to the dictates of their consciences. Publicizing the existence and injurious effects of implicit bias could further self-actualization and individual liberty and would create social awareness, which could benefit society in many ways. However, it seems doubtful that a public education campaign about the perverse consequences of implicit bias would be sufficient to eradicate its operation. Could the law of torts be of service in this regard?

This chapter considers how tort remedies for implicit bias could publicize this serious social problem, awaken individuals to their own implicit biases, stimulate robust public and private discussion about the problem, and deter its antisocial and often grossly unfair social consequences. The first issue to explore is the propriety of engaging tort liability as a means of combating implicit bias. Next, assuming tort law can and should respond to this social problem, a few examples of tortious behavior caused by implicit bias are provided, and tort remedies are proposed. Anticipated challenges to the proposed tort remedies are identified and addressed in the last portion of this chapter.

Publisher: Cambridge University Press
Print publication year: 2012

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