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 own
