Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment

Abstract

INTRODUCING BEHAVIORAL REALISMAlthough they serve different social functions and employ different methods and tools, both law and the empirical social sciences need, use, and produce theories of human behavior.But their respective relationships to these theories differ in significant ways, and for this reason, law and social science often stand in tension with each other when they meet in the courtroom or the case reporter.For its part, law needs, uses, and produces theories of human behavior when judges elaborate constitutional or common law doctrines or interpret ambiguous statutory provisions that implicate human motivation, subjective experience, or choice.Legal actors (judges, jurors, administrative fact finders, dispute handlers, and disputants) also use behavioral theories when they evaluate, litigate, or adjudicate specific disputes, as they attempt, for example, to attribute causation, assess witness credibility, or determine