The Human Mind and Human Rights:
A Call for an Integrative Study of the Mechanisms Generating Employment Discrimination
across Different Social Categories.
Yuval Feldman & Tami Kricheli-Katz
The paper highlights how our knowledge about the ways in which the human mind works and
people behave in social interactions may contribute to our understanding of employment
discrimination and the effective ways of addressing it. It calls for a rigorous empirical study of the
mechanisms generating different forms of discrimination against disadvantaged groups and the
implications that follow for law and policy. The paper’s focus is theoretical, criticizing the current state
of research on employment discrimination and calling for an integrative approach to the research in
this area. In particular, the paper criticizes the following aspect of current lines of research: The lack of
mutual communication among the various disciplines that study discrimination. The over-reliance on
one type of methodology- fact that limits the ability to address the nuances of most discriminatory
settings. The one policy fit all approach, where discrimination against all types of disadvantaged
groups, is viewed as capturing all types of discrimination and the lack of truly accounting for the
interplay between deliberative and automatic modes of reasoning. The paper suggests that by adopting
an integrative perspective, it would be possible to raise awareness among policy makers and employers
to the variation s in the effects of social categories on hiring, promotion and firing practices.
Introduction
The purpose of this paper to propose a new methodological inter-disciplinary approach to the
study of employment discrimination that will improve our understanding of the phenomenon and the
legal policy that aims to address it. The paper highlights how our knowledge about the ways in which
the human mind works and people behave in social interactions may contribute to our understanding of
employment discrimination and the effective ways of addressing it. The paper calls for a rigorous
multi-method empirical study of the mechanisms generating different forms of discrimination against
disadvantaged groups and the implications that follow for law and policy.
The area of employment discrimination has been studied extensively by scholars from almost
all social sciences in addition of course to law, but for the most part there is a relatively weak
integrative framework to these studies. We view this lack of framework as one of the factors
responsible for the inability of the social sciences to have a long-term effect on employment
discrimination and on the way it is regulated in the law. The paper’s main focus is theoretical,
criticizing the current state of research on employment discrimination and calling for an integrative
approach to the research in this area. Since in this paper we don’t analyze new data, our a main
purpose is to raise awareness among policy makers and employers to the variation s in the effects of
social categories on hiring, promotion and firing practices, rather than to provide clear cut answers to
where and when discrimination is expected to be greater.
The paper focuses on discrimination, but discrimination is only an example for how an
empirical research of the human mind and the mechanisms generating social perception, may
contribute to our ways of dealing with them. Thus, implications follow not only to the study of
discrimination but rather also to the study of each phenomenon that involves human behavior and
interactions and calls for a legal remedy.
Indeed, the area of the employment discrimination is one of the most studied areas of research
in the law and society movement. There are very few areas in law where the relevant theories and
methods of the social sciences were applied so extensively and with such an impressive and noticeable
impact on legal theory and practice. Yet, this paper will attempt to call for a much more integrative
methodological and theoretical approach to the study of employment discrimination. We will show that
while numerous angles of employment discrimination were studied by scholars from different
disciplines, there was a relatively weak integrative framework to these studies. We will argue that the
current state of the research undermines the ability of social sciences to lead to a long-term effect on
employment discrimination.
This integration should be done in a few ways:
First, theoretically, we will show that psychology, sociology, organizational behavior,
economics and law carry unique contribution to the understanding of employment discrimination. We
will further argue that any empirical research framework should be informed by all of these disciplines
or else it is likely to lead to partial results. Moreover, we will argue that this integration should occur
already in the design stage of the research, as it is sometime the case that a same actual phenomenon is
given different definitions by different disciplines.
Second, methodically, this comprehensive approach requires the employment of multiple
methods, accounting for the decision making process as well as the social, legal and organizational
context of the decision. The proposed combination of lab, field and legal lines of research needs to be
conducted in a way which will enable a mutual flow of insights. Because some of the processes
generating discrimination are unconscious, a special methodological emphasis should be put on
assessing the role played by such unconscious beliefs and practices.
Third, the above mentioned comprehensive approach should be applied to the study of the
various forms of discrimination. Currently, most of the research in law and social sciences focuses on
conscious discrimination, usually with regard to one social category (such as race or sex). In the
proposed call for an integrative research, we will advocate the advantages in studying multiple modes
of discrimination (conscious and unconscious processes) with regard to all the main salient social
categories. Indeed, one might argue that every social phenomenon calls for such an integrative
approach and more is usually better. However, we will try to argue that the area of employment
discrimination is unique in its complexity for the following reasons:
First, employment discrimination is an area where understanding how people make decisions
(like hiring, salary recommendations and promotion), would not be enough to explain all aspects of the
phenomenon, as employees’ well-being and career trajectories in the workplace are not limited only to
the series of concrete decisions made directly by the employer. Thus for example, performance
evaluations, networks and informal relations immensely influence the experiences and careers of
employees. Workplace equality is a product of numerous routine daily interactions and understanding
only the processes of decision-making would provide only partial description of what employment
discrimination is.
Second, employment discrimination cannot be fully understood without exploring the social
and cultural contexts in which it operates. Inequality, biases and stereotypes exist and operate not only
in the labor market. They start in a much earlier state and are influenced by various social and cultural
artifacts. Therefore, in order to fully understand how employment discrimination works, we should
investigate the background social systems of inequality.
Third, very few behaviors that are addressed by the law are based on a combination of
conscious and unconscious decision making processes (the dual-system reasoning) as the area of
employment discrimination where so many cultural beliefs and stereotypes exist. The dual system in
the case of employment discrimination is generated by factors such as: social desirability, elaborated
web of competing stereotypes, repeated social interaction between various subgroups in society, and
people constant need to make social judgments and act upon them. This interplay between conscious
and unconscious decision making processes requires a research design that is sensitive to the relative
contribution of the two systems and to the interplay between them.
Finally, the need for an integrative approach to employment discrimination comes also from the
tension between universal and local. Many behaviorally based legal policies can overcome the culture
barrier with relatively few modifications. However, it seems hard to implement policies about race in
America for example, to the case of Arabs in Israel, without a thorough theoretical and methodological
cross-cultural comparison of such knowledge. While it is sometimes the case, especially, when it
comes to psychology, that we tend to view decision-making processes as universal, we should remind
ourselves that in especially in areas such as social cognition, the content of peoples’ categories are with
high sensitive to context.
The focus of this paper is general and not on particular laws. However, in order to clarify and
exemplify our arguments we provide a short description of the existing Israeli and American antdiscrimination laws.
Employment anti-discrimination laws prohibit specific forms of employment discrimination
such as discrimination based on race, sex, religion and age.1 These laws however, generally and with a
few exceptions,2 tend not to further address each form of discrimination individually and not to take
into account the different mechanisms generating each one of them. Rather, the approach taken by the
law is general and similar remedies and prohibitions are applied to each of the various forms.
Likewise, while a large amount of theoretical and empirical research has focused on discrimination,
only limited attention has been devoted to analyzing the differences and similarities between the its
different forms.
Based on understandings about how the human mind works and about how people interact with
each other, we argue that these forms of discrimination are not only different in the mechanisms that
1
ISRAEL EMPLOYMENT (EQUAL OPPORTUNITIES) LAW 5748-1988; Title VII of the Civil Rights Act of 1964 (Title VII), prohibits
employment discrimination on the basis of religion, race and sex. The Age Discrimination in Employment Act of 1967 (ADEA) protects certain
applicants and employees who are 40 years old and older from discrimination. Both laws are enforced by the U.S. Equal Employment Opportunity
Commission (EEOC)
2
Both American and Israeli employment anti-discrimination law for example, address disability as a special category that requires accommodation.
Under Israeli law, parenthood may require special accommodations. See: Title I and Title V of the Americans with Disabilities Act of 1990, as
amended (ADA); The Equal Rights for People with Disabilities Law, 5758-1998 (Israel); ISRAEL EMPLOYMENT (EQUAL OPPORTUNITIES)
LAW 5748-1988..
generate them, but also that they result in differences in discriminatory behavior in employment
decision-making. We do not argue that one category is more likely to generate greater discrimination
than other categories. Rather, we argue that the ways in which social interactions and the human mind
work in relation to each of these categories differ from each other, and therefore in order to better
address each form of discrimination, the differences – as well as the similarities – across categories are
ought to be better explored.
To better understand how differences across categories may play out differently and result with
different discriminatory outcomes, take the example of gender, race and age. Gender, race and age are
primary categories of difference in the U.S.3 This means that people automatically and intuitively rely
on these categories in their perception and evaluation of others. These categories are based on salient
physical features that are easily and quickly recognized, so people immediately categorize others by
them.4 The cultural beliefs that are associated with these categories – like that women are “less
assertive” and “more communal” than men, for example – are therefore immediately evoked whenever
people interact with each other. By contrast, religion for example is less salient in interactions when
there are no particular dress codes, so people are not immediately categorized by their religion and
ethnicity in social interactions.
It follows from the above that when employers make discriminatory decisions on the basis of
these characteristics, discrimination may function differently depending on the type of decision the
employer is expected to reach (e.g., hiring, firing, promotion), the level of information available to the
employer on the candidate (e.g., personal background information), the way alternatives are framed
(e.g., comparatively, in absolute terms) and the situational constraints on the possibility to deliberate
(e.g., time to decide, accountability). From a cross-cultural perspective, we also expect to find
differences in the relative importance people attribute to certain categories in different countries.
In accordance with these arguments, the structure of the paper will be as follows: we start with
demonstrating the important role that non-deliberative choice plays in employment discrimination. We
then shortly describe existing anti-discrimination laws in Israel and the U.S and then propose our inter-
3
Marilynn B Brewer & Lui N Layton., The primacy of age and sex in the structure of person categories, 7(3) SOCIAL COGNITION 262 (1989).
Cecilia L. Ridgeway, Interaction and the conservation of gender inequality: Considering employment, 62)2) AMERICAN SOCIOLOGICAL REVIEW 218
(1997).
CECILIA L. RIDGEWAY, FRAMED BY GENDER: HOW GENDER INEQUALITY PERSISTS IN THE MODERN WORLD, (2011).
4
disciplinary methodological approach. We conclude with a call for a behaviorally informed approach
to employment discrimination.
Stereotypes, Non-Deliberative Choice and Discrimination
Research in social psychology suggests that people tend, in social interactions, to
immediately categorize each other by their membership in social groups. Thus, for example,
people tend to immediately categorize each other by their gender and skin color. These categories
tend to have cultural beliefs associated with them about the characteristics of group members. The
cultural beliefs associated with being a woman for example, are of being more communal emotional
expressive. In Contrast, the cultural beliefs associated with being a man are of being more
instrumental.5 Beliefs about the traits of group members reduce the uncertainty people have in
social interactions. People tend to use the cultural beliefs associated with categories, when they try
to understand “who” the others are in a given instance, who are they compared with and how each one
is anticipated to behave. In other words, categories and the beliefs associated with them help people
understand the world and coordinate and interact with each other with less uncertainty). 6 Due to
the fact that people depend on each other for sustaining their needs for information and for
recognition, the cultural beliefs associated with categories are crucial to our social interactions.
The problem is that sometimes the cultural beliefs are inaccurate, are over-generalized and ignore
similarities across categories even when they are greater than the differences. In addition, people
tend to follow such cultural beliefs and behave according to them, even when they themselves do
not believe that they are accurate. They do so, because they know that almost everybody else in
society believes in them and behaves accordingly.
Chris Crandall and Amy Eshleman 7 provide insight into the processes through which
discrimination is generated. They propose a two cognitive stage model that result either with the
expression or with the suppression of discrimination. They name the model “a suppression-justification
5
Kay Deaux & Mary Kite, Gender stereotypes.in PSYCHOLOGY OF WOMEN: A HANDBOOK OF ISSUES AND THEORIES 107 (Florence L Denmark, &
Michele A. Paludi Eds.,1993). ; ALICE H. EAGLY GENDER DIFFERENCES IN SOCIAL BEHAVIOR: A SOCIAL-ROLE INTERPRETATION (1987). ; David G.
Wagner & Joseph Berger, Gender and interpersonal task behaviors: Status expectation accounts, 40(1) SOCIOLOGICAL PERSPECTIVES (1997).
6
ERVING GOFFMAN. INTERACTION RITUAL: ESSAYS ON FACE-TO-FACE BEHAVIOR(1st ed. Garden City, N.Y. Doubleday1967) .
7
Chris S. Crandall, Prejudice Against Fat People: Ideology and Self-interest, 66(5) J. PERS. & SOC. PSYCHOL. 882 (1994).
model”. In this model, discrimination is generated - or not - as a result of a two-stage cognitive
process. In the first stage, an automatic genuine primary prejudice is generated so that individuals are
automatically and negatively evaluated based on their membership in a certain social group. In the
second stage, the expression of the genuine prejudice in the form of discriminatory behavior is either
suppressed or justified by beliefs, values and social norms. Prejudice would not be expressed in the
form of discriminatory behavior when beliefs, values and social norms indicate the inappropriateness
of such expressions. Prejudice would be expressed in the form of discriminatory behavior when
beliefs, values and social norms justify such expressions.
This understanding of the discrimination-generating process clarifies how differences across
forms of discrimination may arise. For each trait, different beliefs, values and social norms justify the
expression of discrimination. Thus for example, perceptions of voluntariness can legitimize the
expression of discrimination on the basis of motherhood for example but not on the basis of age which
is a seemingly immutable trait.8
The processes leading people to discriminate are often times unconscious – especially those
involved in the first stage where people’s genuine primary prejudice is generated. Many people are
unaware of the biases they have and of applying them. Psychologists tend to distinguish between
automatic, intuitive, and mostly unconscious processes (labeled System 1) and controlled and
deliberative process (labeled System 2) 9. Research suggests that System 1 processes play the
leading role in unethical behavior in general. Epley and Caruso10 concluded that automatic
processes lead to egocentric ethical interpretations. Using an implicit association test, Marquardt
and Hoeger11 showed that the decisions made in the context of business ethics were based on
implicit moral attitudes, rather than explicit attitudes. Moore and Lowenstein12 suggested that the
effect of self-interest is automatic and associated with System 1. In the context of discrimination, it
has been shown that both conscious and unconscious processes interact without individual's full
awareness of the fact that discrimination even occurs. Legal scholars, most notably Krieger, have
8
Tamar Kricheli-Katz ““Choice-Based Discrimination: Labor-Force-Type Discrimination Against Gay Men, the Obese, and Mothers” 10 Journal of
Empirical Legal Studies 670-695 (2013)
9
Keith E. Stanovich, & Richard F. West, Individual differences in reasoning: Implications for the rationality debate?, 23:(5) BEHAVIORAL AND
BRAIN SCIENCES 645 (2000)., ).; Evans BT Jonathan St. B.T Evans, In two minds: dual-process accounts of reasoning, 7.(10) TRENDS IN COGNITIVE
SCIENCES 454 (2003). 10 Nicholas Epley & Caruso M. Eugene, Egocentric ethics, 17(2) SOCIAL JUSTICE RESEARCH 171 (2004).
10
Nicholas Epley & Caruso M. Eugene, Egocentric ethics, 17(2) SOCIAL JUSTICE RESEARCH 171 (2004).
11
Nicki Marquardt, Rainer Hoeger, The effect of implicit moral attitudes on managerial decision-making: An implicit social cognition approach,
85(2) JOURNAL OF BUSINESS ETHICS 157 (2009).
12
George Loewenstein &Don A. Moore, When ignorance is bliss: Information exchange and inefficiency in bargaining, 33(1) THE JOURNAL OF
LEGAL STUDIES 37 (2004).
suggested that a large number of biased employment decisions result not from discriminatory
motivation but from a variety of unintentional judgment errors of categorization 13.
Non-Deliberative Choice and Variations in the Perception of Different Social Categories.
Whereas a large amount of theoretical and empirical research has focused on each of the
different forms of discrimination, only limited attention has been devoted to analyzing the
differences and similarities between them.14 It seems however, that the different forms of
discrimination vary in various aspects including the content of the cultural beliefs associated with
the traits (the first stage), and the values and social norms that justify the expression of discrimination
(second stage). We now describe some of the differences across discriminated against traits that have
been described in previous research and the predictions that follow
One of the major differences seems to be related to the level of automaticity involved in the
different social categories. The research on primary categories has shown that people automatically
use no more than three or four primary categories of difference to classify others in socia l
interactions.15 As aforementioned, gender, race and age are primary categories of difference in the
U.S.16 This means that people automatically and intuitively rely on these categories in their
perception and evaluation of others. Gender, race and age are based on salient physical features
that are easily and quickly recognized, so that people immediately identify others by them and
assign the culturally-held beliefs to those who possess them.17 Based on this set of theories about
the ways in which people process information and interact with each other, we can predict that in
hiring decisions, job candidates will experience more discrimination on the basis on their visible
traits (gender, race, age) than on the basis of other less visible traits life religion and sexual
orientation. With promotions however, when employers know more about their employees than
what they can see, we expect this gap between visible and invisible traits to be narrower.
13
Linda Hamilton Krieger, The content of our categories: A cognitive bias approach to discrimination and equal employment opportunity, 47(6)
STAN. L. REV. 1161(1995).;, Linda Hamilton Krieger, Civil rights perestroika: Intergroup relations after affirmative action, 86(6) CAL. L. REV.
1251 (1998).;, Linda Hamilton Krieger & Susan T. Fiske, Behavioral realism in employment discrimination law: Implicit bias and disparate
treatment, 94(4) CAL. L. REV. 997 (2006).;, Melissa Hart, Subjective decisionmaking and unconscious discrimination, 56 ALA. L. REV. 741 (2005).;
Christine Jolls & Cass R. Sunstein, The law of implicit bias, 94(4) CAL. L. REV. 969 (2006)., Stephen M. Rich, Against Prejudice, 80(1) GEO. WASH.
L. REV. 80 (2011)., Glenn D. Reeder& John B. Pryor, Dual psychological processes underlying public stigma and the implications for reducing
stigma 6(1) MENS SANA MONOGRAPHS 175 (2008)., Susan T. Fiske , Amy JC Cuddy & Peter Glick, Universal dimensions of social cognition:
Warmth and competence, 11 (2) TRENDS IN COGNITIVE SCIENCES 77 (2007). ; Eric Luis Uhlmann, Victoria L. Brescoll & Edouard Machery, The
motives underlying stereotype-based discrimination against members of stigmatized groups, 23(1) SOCIAL JUSTICE RESEARCH 1(2010)., Lisa R.
Anderson, Roland G. Fryer Jr & Charles A. Holt, Discrimination: Experimental evidence from psychology and economics in HANDBOOK ON
ECONOMICS OF DISCRIMINATION 97 (William M. Rodgers ed. 2006).
14
Peter Glick & Susan T. Fiske, An ambivalent alliance: Hostile and benevolent sexism as complementary justifications for gender inequality, 56(2)
AMERICAN PSYCHOLOGIST 109 (2001).
15
DAVID J. SCHNEIDER, THE PSYCHOLOGY OF STEREOTYPING (2005).
16
Marilynn B Brewer & Lui N Layton., The primacy of age and sex in the structure of person categories, 7(3) SOCIAL COGNITION 262 (1989).
17
Cecilia L. Ridgeway, Interaction and the conservation of gender inequality: Considering employment, 62)2) AMERICAN SOCIOLOGICAL
REVIEW 218 (1997).
CECILIA L. RIDGEWAY, FRAMED BY GENDER: HOW GENDER INEQUALITY PERSISTS IN THE MODERN WORLD (2011).
An additional factor of importance is whether the protected category is dichotomous or
linear. For example, people tend to think of race, gender, and probably religion as distinct categories
(people are male or female, white or non-white, etc.).18 Age, however, is less categorical and more
relative than race and gender. Furthermore, unlike race and gender, age is culturally associated with a
U-shaped pattern of status disadvantage, so that both the youngest and the oldest are targets of
prejudice and biases.19 We therefore predict that the gender, race, and religion of applicants will affect
employers’ decisions whether they are comparing two job applicants with each other or evaluating the
application materials of an individual employee. In the case of age, however, individual applicants will
be penalized more when they are compared with other job candidates than when they are evaluated
individually. For example, one of the propositions that an experimental research could examine is that
that women and blacks will be penalized regardless of whether they are being compared with other
candidates or evaluated individually, but older job candidates might be penalized more when they are
compared with younger candidates than when they are evaluated individually20.
Discriminated against traits vary also in what values and social norms are associated with the
expression of discrimination on the basis. Race, gender, and age are generally perceived to be nonvoluntary characteristics that people cannot opt in and out of them. Religion, however, is perceived by
many to be more within the person’s control. Research has shown that people tend to discriminate
more when characteristics are perceived to be controllable and to view inequality as more justified
characteristics (Kricheli-Katz, 2012).21 In other words, choice-based moral evaluations and
justifications legitimize the expression of discrimination. Such moral evaluations are associated more
with religion than with discrimination based on age, race, and gender. We therefore predict that when
asked to explicitly justify hiring decisions and salary recommendations, employers will find it easier to
justify unequal treatment based on religion than on race, gender, and age. Thus experimental research
could examine the prediction that a justification requirement will decrease the penalties associated with
gender, race, and age but not with religion.
Cecilia L. Ridgeway & Tamar Kricheli Katz “Intersecting Cultural Beliefs in Social Relations: Gender, Race, and Class Binds and Freedoms” 27
Gender & Society 294-318 (2013).
18
HECKMAN, J. J., L. J. LOCHNER, AND P. E. TODD (2003): “Fifty Years of Mincer Earnings Regressions,” National Bureau of Economic
Research Working Paper Series,No. 9732.
19
This last reported difference, for example, doesn’t have an impact on the way, the law treats these two types of discrimination, which demonstrate
the larger point, we are trying to make regarding the gap between the behavioral phenomena and how it is being treated by the legal system.
21
Tamar Kricheli-Katz, Choice, Discrimination, and the Motherhood Penalty, 46(3) LAW & SOC. REV. 557 (2012) ; Tamar Kricheli-Katz, ChoiceBased Discrimination: Labor-Force-Type Discrimination Against Gay Men, the Obese, and Mothers 10(4) J. EMPIRICAL LEGAL STUD. 670 (2013).
20
Discriminated against traits vary also in the frequency of the social interactions that take place
between members of different groups. Men and women interact with each other more often and usually
with greater intimacy than do same-sex persons of different races and religion status. So do people of
different ages. Whereas we tend to have family or household members of the other gender and of
different ages, we are less likely to share a household or to have relatives of other races and religions.
The daily interactions between men and women and between people of different ages result in many of
the cultural beliefs and stereotypes about gender and age being reinforced in social relations. In other
words, cultural beliefs about gender and age tend to bias the behaviors, performance, and evaluation of
persons in social interactions, and in the process be reinforced. When such interactions are frequent,
they constantly reinforce cultural beliefs about gender.22 When interactions between members of
different groups are less frequent, as in the case of race and religion, other more institutional
mechanisms, like the media, the law, or differential organizational positions of power may be more
important in generating and reinforcing cultural beliefs about the differences between the members of
various groups. Future experimental research could test the prediction that new information, especially
information regarding the warmth and good nature of a job candidate, will reduce employers’ race and
religion based biases, but it will have a smaller reduction in the biases against women and people of
different ages. in that regard, the prediction that information regarding the applicant’s volunteer work
will affect the beliefs of employers more in the biases based on race and religion than on gender and
age, where familiarity and personalization is less problematic, should be tested.
Indeed when we look at the situation in Israel, we can see evidence that discrimination exist
across all of the categories, we are interested in comparing. Various studies have documented
employment disparities in Israel on the basis of sex, race, ethnicity and age. Women’s labor force
participation has dramatically increased in the past decades in Israel. 23 Nonetheless, women are
penalized in wages, hiring and promotion and are segregated in lower status jobs (Harari, 2012). 24
A large percentage of the Jewish population in Israel believes that what women really want is to
have a home and children. 25 As to Arabs, 33% of the Jewish population in Israel view the Arab
Israeli citizens as violent, lawbreakers, and primitive26. Employment discrimination against Arabs
22
CECILIA L. RIDGEWAY, FRAMED BY GENDER: HOW GENDER INEQUALITY PERSISTS IN THE MODERN WORLD (2011).
Barbara Okun, Amalia .L. Oliver, Paid work and family structure – a longitudinal study of Jewish women in Israe, 10: 2 Israeli Sociology 307
(2009).
24
Oren Perez, Making Fathers Care – Parental Leave for Fathers in Israel – Policy Recommendations 15 Policy Paper (2010)., Dafna Izraeli,
Gender in the Workplace In SEX, GENDER, POLITICS, Lewis, Suzan, Dafna Izraeli, N., Hootsmans, H. (eds). Tel Aviv: (1999).
25
Ania Glikman, Anat Oren, Noach Lewin-Epstein, A NEW ISRAELI FAMILY? Tel Aviv: The B.I. and Lucille Cohen Institute for Public Opinion
Research, Tel Aviv University (2003).
26
Sammy Samooha, Arabs and Jews in a Jewish and Democratic State: Multilateral Repudiation of Public Responsibility? in PUBLIC RESPONSIBILITY
IN ISRAEL 527 (Raphael Cohen-Almagor, Ori Arbel-Ganz and Asa Kasher eds. Tel-Aviv: Hakibbutz Hamuchad. 2012).
23
in Israel is common, second only to age-based discrimination. 27 According to the self-perception of
the Arab population, discrimination is most prominent in such areas as being invited for
interviews, occupations open to them, and the likelihood of reaching a managerial position. 28
Ageism in Israel is prevalent as much as in the rest of the world. 29 The percentage of senior
citizens beneath the poverty line in Israel is higher than in most of the western world.30 Finally,
many studies have shown that Israel Mizrahi Jews are disadvantaged in the labor market compared
to Ashkenazi Jews. They tend to hold, on average, less prestigious professions, to be less educated
and to earn less.31 Another look at the prevalence of the different discrimination cases could be
seen from the following data source. In 2011, 4.6% of all complaints against employers to the Israeli
equivalent of the EEOC were gender-related, and only 3% were race-related.32 In 2012, 11% of
complaints were due to age discrimination and 5% to gender discrimination. Complaints based on
religion and ethnicity represented 2% and 3%. More than 40% complained about discrimination at the
dismissal stage, and a fifth of the complaints were about discrimination at the hiring stage or about
work conditions.
Anti-discrimination Law
Although it seems that the differences across discriminated against traits call for different
treatment by employment anti-discrimination laws, the Israeli law tend to generally and with a few
exceptions,33 take a universal approach and to address to all forms of illegal discrimination
similarly. Thus, the Employment Equal Opportunities Law of 1988 34 prohibits employment
discrimination based on certain protected characteristics like gender, sexual orientation, age,
religion, nationality, country of origin, and political views without specifying different
prohibitions, remedies or penalties that are associated with each one of the certain protected
characteristics This is to say that discrimination on basis of gender for example, is addressed by
27
Equal Opportunities, Work Discrimination And Diverse Employment: Statements And Perceptions Of Employers (publication leading up to the
annual convention of the Research and Economics Administration at the Ministry of Industry, Trade and Labor ( 2011 ).
28
Ono Report, 2009.
29
Ehud Bodner, Aryeh Lazar, Ageism among Israeli students: structure and demographic influences, 20(5 ) INTERNATIONAL
PSYCHOGERIATRICS 1046 (2008).
30
Jenny Brodsky,Yitzhak Shoor &Shmoel Be’er, The Elderly in Israel: Statistical Data(Israel Gerontological Data Center , The Hebrew University of
Jerusalem 2008).
31
Sammy Smooha & Vered Kraus, Ethnicity as a factor in status attainment in Israel, 4(4) RESEARCH IN SOCIAL STRATIFICATION AND MOBILITY 151
(1985).; Shlomo Swirski & Eti Konor-Atias, Israel: A social Report 2011 (Etty adva center ,2012).
32
EEOC Report, 2011.
33
Under Israeli anti-discrimination law, disability and motherhood are addressed as special categories that may require
accommodation. See: The Equal Rights for People with Disabilities Law, 5758-1998 (Israel); ISRAEL EMPLOYMENT (EQUAL
OPPORTUNITIES) LAW 5748-1988.
34
ISRAEL EMPLOYMENT (EQUAL OPPORTUNITIES) LAW 5748-1988.
the law similar to the way in which discrimination on the basis of age is addressed. Likewise, the
protection against discrimination on the basis of all protected traits applies to the hiring, working
conditions, promotion, professional training or studies, dismissal or severance pay, and benefits and
retirement payments. Differential treatment necessitated by the character or nature of the assignment is
not regarded as discrimination under Israeli law, regardless of what the protected trait is. Likewise, the
American employment anti-discrimination law35 does not address each form of discrimination
individually and does not take into account the different mechanisms that generate each form.
Rather, for the most part, with few exceptions, the approach is general and similar burdens,
remedies, and prohibitions are applied to each of the various protected groups. Admittedly, Federal
anti-discrimination law makes some distinctions between different forms of discrimination for the
purpose of the accommodation requirement.36 For example, employers may be required to make
accommodations for employees based on their religion or gender, whereas accommodations are not
necessary for national origin. Unlike federal employment anti-discrimination law (that applies both in the
private and in the public sector), the U.S. Constitution (that applies to federal and state governments) does
distinguish between different forms of discrimination in the level of scrutiny applied by the court.
The Fifth and Fourteenth Amendments of the Constitution constrain the federal and state
governments from engaging in discriminatory practices. The Fifth Amendment prohibits the federal
government from depriving individuals of life, liberty, or property without due process, 37 while
the Fourteenth Amendment prohibits states from violating individuals’ rights to due process and equal
protection.38 Certain distinctions between people when made by the federal or state governments are
defined as suspect classifications and, as a result, when challenged subject to strict judicial scrutiny
under the equal protection clause.39 To pass the strict scrutiny test, any such distinction must be
narrowly tailored to further a compelling state interest. When determining which classifications require
strict scrutiny, the Supreme Court has traditionally applied the following criteria: whether the trait
characterizing the members of the group is immutable40; a history of purposeful discrimination against
35 Title VII of the Civil Rights Act of 1964 .
36
Title VII of the Civil Rights Act of 1964; Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA).
37
U.S. Const. amend. V.
38
U.S. Const. amend. XIV.
39
United States v. Carolene Prods., 304 U.S. 144 (1938). On the application of the scrutiny, see Korematsu v. United States, 323 U.S. 214 (1944)
(upholding Executive Order 9066, which ordered all persons of Japanese descent into internment camps during World War II); Loving v. Virginia,
388 U.S. 1 (1967) (striking down Virginia’s law banning interracial marriage).
40
The immutability factor has been widely criticized by scholars, on various grounds. See, e.g., Jack M. Balkin, The Constitution of Status, 106 YALE
L.J. 2313, 2323–24 (1997) (discussing the role of society in stratification based on traits); Janet E. Halley, Sexual Orientation and the Politics of
members of the group; and whether the group is politically powerless.41 The immutability criterion is
the most relevant to our discussion of antidiscrimination law and its insufficient protection of gay men
and women, the obese, and mothers from choice-based discrimination. It is based on the belief that
when traits are not voluntary and not within the control of the people who hold them, unequal
treatment based on those traits is unjust, because the victims of discrimination cannot prevent it.42
When classifications do not meet these criteria, the Court usually applies intermediate43 or
rational basis scrutiny,44 rather than strict scrutiny. The level of scrutiny applied is tremendously
Biology: A Critique of the Argument from Immutability, 46 STAN L. REV. 503 , 507-16 (1994) [hereinafter Halley, Argument from Immutability]
(criticizing the immutability argument in homosexual cases); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian,
and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Bisexual Identity] (arguing the displacement of Immutability and
showing that immutability is neither a necessary nor a sufficient precondition for recognition of a suspect classification); Nan D. Hunter, Life After
Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (discussing the problematic immutability doctrine); Laurence H. Tribe, The Puzzling
Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980) ; Kenji Yoshino, Assimilationist Bias in Equal Protection: The
Visibility Presumption and the Case of "Don't Ask, Don't Tell", 108 YALE L.J. 485 (1998) (arguing that courts are more likely to accord heightened
scrutiny to a classification if its defining trait is immutable or visible, meaning that groups that can assimilate into mainstream society by changing or
altering their defining trait are less likely to benefit from judicial solicitude and by withholding protection from these groups, the judiciary is subtly
encouraging them to assimilate when faced with burdensome legislation). For the traditional justifications for the immutability requirement, see
Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 740-46 (1985); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY
OF JUDICIAL REVIEW 150 (1980); Nancy J. Knauer, Science, Identity, and the Construction of the Gay Political Narrative, 12 L. & SEXUALITY 1
(2003); E. Gary Spitko, A Biologic Argument for Gay Essentialism-Determinism: Implications for Equal Protection and Substantive Due Process, 18
U. HAW. L. REV. 571, 598 (1996); and Marc R. Shapiro, Comment, Treading the Supreme Court’s Murky Immutability Waters, 38 GONZ. L. REV.
409 (2003).
41
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (discussing the history of sex discrimination and whether women are a small and powerless
minority or not). See also Ackerman, supra note 48, at 718 (explaining the four operative terms of Carolene Products to be “(1) prejudice, (2)
discrete, (3) insular, and (4) minorities”); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 16-23 (3d ed. 2000) (considering such factors as
political powerlessness, a history of discrimination, immutable traits, and relevance of classification to governmental purpose); James W. Ellis, On
the "Usefulness" of Suspect Classifications, 3 CONST. COMMENT. 375, 376 (1986) (discussing the criteria of history of discrimination, powerlessness
and being substantially disadvantage in the political arena) ; Jane Rutherford, Equality as the Primary Constitutional Value: The Case for Applying
Employment Discrimination Laws to Religion, 81 CORNELL L. REV. 1049, 1081 (1996) ("The Supreme Court focuses on immutability, a history of
discrimination, lack of political access, and discrete and insular status as the hallmarks of powerlessness, that trigger strict scrutiny."); Thomas W.
Simon, Suspect Class Democracy: A Social Theory, 45 U. MIAMI L. REV.107, 123-28 (1990) (discussing the Carolene Products Doctrine); Mark
Strasser, Suspect Classes and Suspect Classifications: On Discriminating, Unwittingly or Otherwise, 64 TEMP. L. REV. 937, 938-39 (1991)
(evaluating what a suspect class is).
42
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). See also Samuel A.
Marcosson, Constructive Immutability, 3 U. PA. J. CONST. L. 646, 673 (2001) ("Few arguments offered on behalf of ending discrimination or
inequality resonate more powerfully than immutability. It reflects the universal appeal of the concept that it is unfair to disadvantage people based on
a characteristic over which they exercise no control.").
43
Intermediate scrutiny has been applied to distinctions based on sex and illegitimacy. To pass the intermediate scrutiny test, a law must be aimed at
achievement of important governmental objectives. Craig v. Boren, 429 U.S. 190 (1976) (invalidating Oklahoma statute that prohibited sale of 3.2%
beer to men under 21 and to women under 18, rejecting statistical evidence purporting to show that males between 18-20 are a greater traffic risk
than females, and finding that the gender-based difference was not “substantially related to the achievement of the statutory objective”). For the
application of the intermediate scrutiny test, see Bradwell v. State of Illinois, 83 U.S. 130 (1873) (upholding Illinois law denying women the right to
practice law); Minor v. Happersett, 88 U.S. 162 (1875) (holding that women’s right to vote could be denied); Miss. Univ. for Women v. Hogan, 458
U.S. 718 (1982) (invalidating the all-female admissions policy at a school of nursing); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding
that gender-based peremptory challenges are unconstitutional); U.S. v. Virginia, 518 U.S. 515 (1996) (invalidating male-only admissions at VMI for
lack of an “exceedingly persuasive justification”).
44
The rational basis test applies when there is no suspect or quasi-suspect classification involved. To pass the test, the classification must be rationally
related to a legitimate state purpose. See, e.g., Railway Express Agency v. New York, 336 U.S. 106 (1949) (upholding New York regulation allowing
advertising on trucks used for deliveries but prohibiting them on trucks used mainly for advertising); Williamson v. Lee Optical Co., 348 U.S. 483
(1955) (upholding Oklahoma statute prohibiting opticians from supplying lenses without a prescription from an optometrist or ophthalmologist);
Minnesota v. Cloverleaf Creamery Co., 449 U.S. 456 (1981) (upholding Minnesota law banning sale of milk in plastic, nonreturnable containers but
permitting sale of milk in paperboard, nonreturnable containers); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (striking down
an ordinance requiring a special permit for a group home for the mentally retarded but not requiring one for hospitals, sanitariums, or nursing
homes).
important. Strict scrutiny tends to be a rather rigorous standard of review,45 whereas rational basis a
more lenient standard.46 As a result, when a government makes distinctions based on allegedly mutable
characteristics, the Supreme Court tends to be more tolerant and accord less protection from
discrimination. Note nonetheless, that although the constitution – unlike American federal employment
anti-discrimination law - does distinguish between different forms of discrimination in the level of scrutiny
applied by the court, the distinctions are based on the socio-history of inequality and not on behavioral
insights.
Interestingly, the list of protected traits under the Israeli law, is much wider than the American one.
While the list of protected characteristics under federal American law contains mostly seemingly
immutable traits, the list under Israeli law contains both seemingly immutable and seemingly mutable traits
– like political views and pregnancy.
It is often the case that it is difficult to prove a discrimination case. The difficulty can be divided
into two types: (1) evidential, that is caused by the fact that the employee is unaware of the considerations
that led the employer to his or her decision; and (2) cases in which the decision is based both on appropriate
and inappropriate considerations.47
As stated earlier, in the context of employment discrimination, Judges both in Israeli and in
America are well aware of discrimination being sometimes unconscious and therefore do not
require that it be proven that the discriminator was aware of discriminating.48 Still, clearly the vast
majority of misconducts in this area never reach the court, in employment discrimination law in
general49 and in Israel in particular.50 Moreover, even these cases, where the case law is sensitive
to the possibility that there is more to it than meets the eye, we cannot see a substantive attempt to
incorporate the findings of psychology into the substantive law of employment discriminati on. For
the most part the treatment of judges is either in recognizing the difficulty of proving
discrimination, or in suggesting in a non-binding way, that the process of screening for candidates
in a given workplace is prone to biases and arbitrary decisions51.
45
But see Korematsu v. United States, 323 U.S. 214 (1944) (upholding an order under the strict scrutiny test).
46
But see City of Cleburne, 473 U.S. at 432 (striking down an ordinance under the rational basis test). Note however, that in this case, the court might
have been suspicious of animus towards the mentally retarded.
47
Sharon Rabin-Margalioth, The Elusive Case of Employment Discrimination: How Do We Prove Its Existence?, 44 HAPRAKLIT L. REV 529 (1999).
H.C.J. 104/87 Dr. Neomi Nevo v. The National Labor Court, 1987., 09-9690 Ababa v. A.A 101 Group , 2013.
49
ROBERT L.NELSON& WILLIAM P. BRIDGES, LEGALIZING GENDER INEQUALITY: COURTS, MARKETS AND UNEQUAL PAY FOR WOMEN IN AMERICA16.
(Cambridge University Press,1999).
50
Sharon Rabin-Margalioth, The Elusive Case of Employment Discrimination: How Do We Prove Its Existence?, 44 HAPRAKLIT L. REV 529 (1999).
51
See the recent Tel Aviv labor court case no. 3816-09 of Malka v. the Israeli Aviation Industry (02.08.2013).
48
Following the description of the current laws mostly unified approach to discrimination, we
will move next to examine the way through which a more nuanced knowledge about discrimination
could be accumulated.
Principles for an Integrative Research Agenda
Thus far, we have argued that the general approach taken by anti-discrimination law fails to
address the possible differences across various forms of discrimination and that in order to
efficiently address discrimination, further research is ought to be conducted. In what follows we
develop a mixed-method integrative research design for a future research agenda that would aim at
exploring differences across forms of discrimination as well as how to deal with them. An
emphasis would be put on the role played by conscious and unconscious processes and on the
different stages of employment relations across the different forms of discrimination.
Various research methods have been used in the past to study discrimination: qualitative,
quantitative and experimental.52 Each of these methods has its own shortcomings; Experiments
tend to be conducted on a non-representative sample of the population and in a lab setting, and
therefore do not necessarily suggest that what happens in the lab also happens outside the lab. In –
depth qualitative studies tend to be conducted on a small number of cases. Quantitative studies
tend to show correlations between variables, but not causal relations. For this reason we suggest
that the design of the study of the difference across forms of discrimination would be a mixed
methods research design, so that each component of the study would complement the others. It is
important to note that for the mixed method design to achieve its purpose, we would need to
account for the relative contribution of each one of the methods, already in the design stage to
make sure one can cover all of the relevant aspects of the discriminatory behavior needed for the
legal policy making.
Because unconscious processes play a major role in generating discrimination, the study
should focus not only on conscious employment type decisions people make. Methods developed
in the literature on the two systems of reasoning would therefore be helpful in designing the study and
distinguishing between automatic, intuitive, and mostly unconscious processes (System 1) and between
controlled and deliberative processes (System 2).
52
William A Darity & Patrick L. Mason, Evidence on discrimination in employment: codes of color, codes of gender, 12(2) JOURNAL OF ECONOMIC
PERSPECTIVES 63 (1998); Guy Mundlak, Do Employment Antidiscrimination Laws Work? LAW, SOCIETY AND CULTURE : IS THE LAW IMPORTANT?
223 (2011).
Since one of the main arguments we try to pursue is that the different forms of discrimination
“behave” differently in various types of decisions, the study should explore various phases in
employment relations – such as hiring, promotion and salary recommendations. The forms of
discrimination the study should include most salient categories of difference in Israeli labor market
such as sex, race, ethnicity, age and religion.
At the exploratory stage, study based on such an approach should investigate the attitudes
and beliefs people have regarding the different categories of difference. Based on the information
collected in this explanatory stage future studies could be designed – like vignette surveys or
experimental surveys that examine people's moral and social judgments of various hypothetical
employment type decisions (like hiring, promotion and salary recommendations) concerning each
of the explored categories of difference. Based on the evidence collected, audit studies - where
CVs of equally qualified individuals who vary solely on one of the discriminated against
categories would be sent to real employers - could be conducted to evaluate people's employment
types decision-making processes. Finally, a series of experiments in a controlled lab setting (where
some of the external validity of the sample would be compromised) to explore the interplay
between the involvement of Systems 1 and 2 in employment related decision. Techniques like
implicit association tests (IAT) 53, ego depletion, and priming would be used. This unique
combination of sociological and psychological methods is expected to generate a complete picture
of the decisions employers make with regard to different types of employees and job candidat es.
Below we discuss in greater details each of the methods.
A.
Exploratory Stage
To construct a baseline of evidence for the research study participants would be asked up
front to state their view of the relative importance of the five discriminated against categories in
the likelihood of equal opportunity at the workplace and beyond. In the exploratory stage some
existing attitude surveys that have been conducted in Israel on inter-group relations would be rely
upon.54 But in contrast to earlier studies, the focus of this explanatory stage should be on
53
There is a long list of techniques whose main objective is allow an understanding of the relative role of implicit and automatic processes versus that
of explicit and deliberative processes. Among them, we can list the IAT, implicit attitude testing that focuses, in this context, on understanding the
implicit association, people have between certain social categories and various stereotypes; ego depletion, which provide an insight on the automatic
mechanisms which is expected to have greater contribution, when people have scarcity of cognitive resources needed for fully functionality of
peoples’ deliberative mechanisms and priming which is expected to have a similar effect but creating greater stimulation to people’s automatic
choice mechanisms.
54
For example in that report, 12% of the respondents specifically mentioned their religious beliefs as a factor that was mentioned by the employers
and caused rejection, suspicion and comments from the interviewers. (Reut Marciano & Dan Kaufmann, academic ultra-orthodox graduates
integration Ministry of Industry and Trade the Jerusalem institute of Israel studies, 2012). 28% of all the job seeking respondents said they weren't
hired due to being a part of the following groups: woman, elderly people, Arabs, religious people, Mizrahi Jews, disabled and mothers to toddlers.
comparing the five categories both in intensity and in quality. 55 In addition to ranking and Likert
scales used by participants, at this stage opportunities for free text entries regarding participants'
views about the perception commonly associated with the given categories would be enabled,
allowing room for free text entries about how participants evaluate the likelihood that people in the
five categories will be granted equal opportunity at the workplace. Group perceptions could also
be measured by supplementing participants' subjective perception of the work morale and
qualification of the five groups with some perceived “objective” data concerning the five
categories (e.g., what is the percentage of unemployment among Ethiopians or people over 55
years of age, the percentage of ultra-Orthodox people who want to work, the percentage of women
who are executives or partners in law firms, etc.). Although the focus of this stage is primarily on
explicit measures, word-completion tasks could also be used to capture some of the more implicit
associations regarding the five categories. Because the perceptions that are at the focus of this
project are related to different segments of society, the mixture of members in the focus groups
will be of great importance. It is recommended therefore to hold focus group also in the Arab and
ultra-Orthodox sectors, where people are less likely to respond to ads regarding academic research.
In order to get a more realistic view of participants’ attitudes toward discrimination, replicating the
study on a sample of employers is also recommended.
B.
Stage 2: Experimental Survey
The second stage of the empirical research would focus on experimental surveys in which
participants would receive identical descriptions of hiring situations with randomized information
about different social categories, and would be asked to evaluate the likelihood that the person will
get the job and to estimate the expected salary. The design of the vignettes would be informed by
the associations provided by participants in the first stage. For example, if part icipants in the first
stage described their explicit perceptions about the ultra-Orthodox (e.g. being lazy), the vignettes
used at the second stage would address those perceptions directly, manipulate them, and examine
whether they have a similar effect when applied in a between-subjects design. At this stage, the
effect of factors like the amount of information about each candidate, framing of the relevant law,
and the type of position would be controlled for. Some of the attitude measures would also be
replicated at this stage to improve the ability to compare between the two stages of the research.
Furthermore, participants would be asked questions about justifications of the protection from
The groups that the public thought suffers most from discrimination were the elderly or disabled people (56%), Arabs (42%) and woman (36%)
(Handles, 2012).
55
Following the dimension developed by Fiske.
discrimination provided by the law and the courts. Participants would be asked to answer a list of
questions concerning the frequency and nature of their interactions with members of other
ethnicities, genders, age groups, races, and religions, and about their beliefs about the competence
and work commitment of members of the various groups. To obtain another view of the interaction
between the two systems, the joint or separate evaluation paradigm would be employed, 56 where a
between-subjects design across the five categories would be employed, but each participant would
provide responses in more than one category. This stage would also include an extensive
demographic questionnaire. The sample would be a combination of few convenience-based
samples with one sample representative of the entire population, including the Arab sector, toward
the end of this stage.
Stage 3: Hiring Experiments
The third stage would consist of several hiring experiments (both audit experiments where
factious CVs will be sent to real employers and lab experiments) designed to evaluate employment
type decision-making processes. The experimental design would be based on empirical predictions
derived from theory and from the empirical results obtained in the first two stages of the project.
The studies would explore the differences in the effects of the following factors on decisions
employers make concerning the five categories: level of information available to the employer
about the candidate, variation in the degree to which the antecedents of the decisio n are automatic
or controlled, inter-sectionality (belonging to more than one group, for example being an elderly
Muslim woman who emigrated from another country), type of decision (hiring, dismissal,
promotion, salary, training), and the conditions under which the decision was made (joint vs.
individual).
In the lab experiment, participants would be asked to examine the application materials
(resumes and cover letters) submitted by two fictitious job applicants for a senior marketing
position in a new high-tech company. Participants would be told that the applications they view are
real job applications. Thus, for example, the candidates would be equally qualified for the position
but will differ in one of the following four ways: gender (Jewish gender-typical names); race
(male, Jewish vs. Arab names); age (Jewish males, 55 vs. 38 years old); religion (male, Muslim vs.
typical Jewish names that carry no religious connotations). In addition, audit studies with real
employers would be conducted to supplement the analysis.
56
Neeru Paharia, Karim S. Kassam, Joshua D. Greene & Max H. Bazerman, Dirty work, clean hands: The moral psychology of indirect agency ,
109(2) ORGANIZATIONAL BEHAVIOR AND HUMAN DECISION PROCESSES 134 (2009).
C.
Stage 4: Lab Experiments
The final component of the study would be an experiment in a decision lab where the
interaction between the conscious and unconscious processes will be explored. Below we discuss
the main types of manipulation we feel is necessary to establish a coherent view of the actual
process of decision making and accounting for the relative roles of the two systems. While
naturally, room would be left for factors which would rise to be seen as meaningful in earlier
stages of the study, the following seem to be especially important.
1. The way in which the candidates are presented to the participants (individually vs.
jointly57).
2. Various ego depletion methods 58 before the stages of reading the CVs or making hiring
decisions (e.g., crossing e’s and completing a sudoku).
3. Using word completion techniques to prime various states of mind before making the
decision (e.g. morality, guilt, likelihood of sanctions, stigma associated with relying on
stereotypes).
4. Variations in the incentive structure (e.g., comparing performance when the incentives are
to select the best candidate vs. selecting the candidate that most of the other participants
have picked).
5. Manipulating the level of information available to the decision maker and investigating
what type of information decision makers seek to obtain when a relevant factor in the CV is
missing.59
6. Manipulating the visual information (e.g., pictures of the candidates) across the five
categories while measuring the order in which the textual vs. visible information is
presented to participants.
7. Manipulating the exposure of the members to the five social categories before reaching a
decision.
8.
IAT60 based on a comparison of the existing IAT test in the five categories.
9. Accountability (e.g., “Following the decision you will be asked to explain,” controlling for
the actual rationales provided by participants).
57
i.e. evaluating each candidate separately vs. choosing the best candidate from a potential group.
58
Which will allow for an understanding of the relative contribution of people’s automatic vs. deliberative decision making systems.
59
When participants will look for information, a menu with options will open for them and their choices across the five conditions will be monitored.
Implicit attitude test [see supra __]
60
10. Manipulating the amount of time participants have to make a decision (5 seconds vs. at
least 15 seconds).
The combination of such methods to explore how employers make decision with regard to the
people, they hire, fire or promote is expected to generate the type of knowledge on human
behavior will be resilient to many of the critics of behaviorally based regulation. In addition, such
knowledge which is sensitive to the mythological and theoretical concerns of all relevant social
science could help generate a shared vocabulary and agreed upon observation on the decision
making processes which are related to employment discrimination.
Potential Normative implications of the Proposed Methodological Approach:
Such integrative approach could lead to few policy recommendations which we will outline in
the following paragraphs.
The first and most obvious recommendation is to revisit the formal antidiscrimination laws and
consider ex-post differentiated ways of scrutiny for different forms of discrimination and different
employment practices. This approach carries with it some challenges which will be outlined. We
therefore, examine also an ex-ante approach that focuses on informal ways to design the decision
making processes in a way that is sensitive to the actual likelihood of discrimination. Finally we
believe that the differentiated approach to employment discrimination, should be expanded to areas
beyond employment discrimination, such as service contracts, financial transactions, etc. We hope that
the methodological approach advocated in this paper would be used in the future in the above
mentioned domains, as many of the outlined arguments, are equally relevant for both employment and
non-employment settings.
The Ex-post approach
If the suggested approach to employment discrimination would have been applied to the law,
described above in a straightforward way, the obvious implication would have been to differentiate in
terms of level and ways of scrutiny across forms of discrimination and types of employment practices.
For example, in contexts were automatic biases are more likely to affect decision making processes,
less emphasis should be put on the state of mind of the employer.
A differentiated approach to different forms of discrimination could be found in US
constitutional law, in which any classification based on race is strictly scrutinized (strict in theory fatal
in fact), while classifications based on gender are given intermediate scrutiny and classifications based
on age are given only rational basis scrutiny, which means that the government need only show
rational relation to a legitimate state interest in order to survive the scrutiny.
The Fifth and Fourteenth Amendments of the Constitution have been interpreted by the
Supreme Court as constraining the federal and state governments from engaging in discriminatory
practices. The Fifth Amendment prohibits the federal government from depriving individuals of life,
liberty, or property without due process,61 while the Fourteenth Amendment prohibits states from
violating individuals’ rights to due process and equal protection.62 Certain distinctions between people
when made by the federal or state governments are defined as suspect classifications and, as a result,
when challenged subject to strict judicial scrutiny under the equal protection clause.63 To pass the strict
scrutiny test, any such distinction must be narrowly tailored to further a compelling state interest.
When determining which classifications require strict scrutiny, the Supreme Court has traditionally
applied the following criteria: whether the trait characterizing the members of the group is immutable;
a history of purposeful discrimination against members of the group; and whether the group is
politically powerless.64 When classifications do not meet these criteria, the Court usually applies
61
U.S. Const. amend. V.
U.S. Const. amend. XIV.
63
United States v. Carolene Prods., 304 U.S. 144 (1938). On the application of the scrutiny, see Korematsu v. United States, 323 U.S. 214 (1944)
(upholding Executive Order 9066, which ordered all persons of Japanese descent into internment camps during World War II); Loving v. Virginia,
388 U.S. 1 (1967) (striking down Virginia’s law banning interracial marriage).
64
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (discussing the history of sex discrimination and whether women are a small and powerless
minority or not). See also Ackerman, supra note 48, at 718 (explaining the four operative terms of Carolene Products to be “(1) prejudice, (2)
discrete, (3) insular, and (4) minorities”); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 16-23 (3rd ed. 2000) (considering such factors as
political powerlessness, a history of discrimination, immutable traits, and relevance of classification to governmental purpose); James W. Ellis, On
the "Usefulness" of Suspect Classifications, 3 CONST. COMMENT. 375, 376 (1986) (discussing the criteria of history discrimination, powerless and
substantially disadvantage in the political arena) ; Jane Rutherford, Equality as the Primary Constitutional Value: The Case for Applying
Employment Discrimination Laws to Religion, 81 CORNELL L. REV. 1049, 1081 (1996) ("The Supreme Court focuses on immutability, a history of
discrimination, lack of political access, and discrete and insular status as the hallmarks of powerlessness, that trigger strict scrutiny."); Thomas W.
Simon, Suspect Class Democracy: A Social Theory, 45 U. MIAMI L. REV.107, 123-28 (1990) (discussing the Carolene Products Doctrine); Mark
Strasser, Suspect Classes and Suspect Classifications: On Discriminating, Unwittingly or Otherwise, 64 TEMP. L. REV. 937, 938-39 (1991)
(discussing the question "what is a suspect class?").
62
intermediate65 or rational basis scrutiny,66 rather than strict scrutiny. The level of scrutiny applied is
tremendously important. Strict scrutiny tends to be a rather rigorous standard of review,67 whereas
rational basis a very lenient standard.68 As a result, when a government makes distinctions based on
allegedly mutable characteristics, the Supreme Court tends to be more tolerant and accord less
protection from discrimination.
Adopting such variations in the scrutiny of courts which will be based on evidence from the
social sciences, rather than on normative consideration raises some serious questions which we don’t
downplay. For example creating variations in the level of scrutiny for different types of discrimination
or for different categories could have some unwanted cultural effects and create unnecessary
complexity69. This is especially important, given the fact that we are dealing here with employment
laws which should guide not only employers as to what actions they are not allowed to take but also
employees, many of whom come from disempowered groups, for whom greater complexity might
reduce the likelihood that they might file a suit even when their rights are being deprived.
The ex-ante approach
These difficulties lead us to suggest an ex-ante approach to employment discrimination which uses the
behavioral knowledge to create guidelines which if adopted could reduce scrutiny by courts, in a
similar way to other types of new governance approaches.
According to this approach, the focus on understanding better the situations where employment
discrimination is more likely to occur, would be on ex-ante prevention rather than on ex-post
differentiated treatment. . In those situations, instead of simply alerting judges to the need for greater
65
Intermediate scrutiny has been applied to distinctions based on sex and illegitimacy. To pass the intermediate scrutiny test, a law must be aimed at
achievement of important governmental objectives. Craig v. Boren, 429 U.S. 190 (1976) (invalidating Oklahoma statute that prohibited sale of 3.2%
beer to men under 21 and to women under 18, rejecting statistical evidence purporting to show that males between 18-20 are a greater traffic risk
than females, and finding that the gender-based difference was not “substantially related to the achievement of the statutory objective”). For the
application of the intermediate scrutiny test, see Bradwell v. State of Illinois, 83 U.S. 130 (1873) (upholding Illinois law denying women the right to
practice law); Minor v. Happersett, 88 U.S. 162 (1875) (holding that women’s right to vote could be denied); Miss. Univ. for Women v. Hogan, 458
U.S. 718 (1982) (invalidating the all-female admissions policy at a school of nursing); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding
that gender-based peremptory challenges are unconstitutional); U.S. v. Virginia, 518 U.S. 515 (1996) (invalidating male-only admissions at VMI for
lack of an “exceedingly persuasive justification”).
66
The rational basis test applies when there is no suspect or quasi-suspect classification involved. To pass the test, the classification must be
rationally related to a legitimate state purpose. See, e.g., Railway Express Agency v. New York, 336 U.S. 106 (1949) (upholding New York
regulation allowing advertising on trucks used for deliveries but prohibiting them on trucks used mainly for advertising); Williamson v. Lee Optical
Co., 348 U.S. 483 (1955) (upholding Oklahoma statute prohibiting opticians from supplying lenses without a prescription from an optometrist or
ophthalmologist); Minnesota v. Cloverleaf Creamery Co., 449 U.S. 456 (1981) (upholding Minnesota law banning sale of milk in plastic,
nonreturnable containers but permitting sale of milk in paperboard, nonreturnable containers); City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432 (1985) (striking down an ordinance requiring a special permit for a group home for the mentally retarded but not requiring one for
hospitals, sanitariums, or nursing homes).
67
But see Korematsu v. United States, 323 U.S. 214 (1944) (upholding an order under the strict scrutiny test).
68
But see City of Cleburne, 473 U.S. at 432 (striking down an ordinance under the rational basis test). Note however, that in this case, the court might
have been suspicious of animus towards the mentally retarded.
69
For a discussion of the optimal specificity of law, see Feldman and Smith (forthcoming 2014)
scrutiny ex-post, detailed ex-ante guidelines for employer will be created which will detail the ways
through which discrimination could be curbed. Such steps could include how many people should be in
the team of decision makers, whether accountability should be required and how to design the hiring
procedure (e.g. joint vs. separate, level of information allowed, supporting evidence for the decision).
In addition, such ex-ante approach would create a requirement for employer’s training which will
focus on the blind spots70 that employers might have, to create awareness to the various unintended
processes which might be present, with different social categories in different employment stages.
Here too ,the policy maker could adopt a new governance approach, and promise reduced scrutiny in
return for mandatory participation in such training and adopting of decisions making guidelines in their
organization which will be more resilient to unintended influences 71.
Summary, Conclusion and Future Research
In this paper we have tried to articulate principles for an integrative study of employment
discrimination. We have highlighted the ways in which our knowledge about the ways the human mind
works and people interact with each other, may contribute to our understanding of employment
discrimination and outlined a mixed method research design that would contribute to our
understanding of employment discrimination and the effective ways of addressing it.
We have argued that psychology, sociology, organizational behavior, economics, and law all make
unique contributions to the understanding of employment discrimination. We suggested that this
recognition should be taken in to account as early as the design stage of the research. The current state
where policy makers need to integrate knowledge which was accumulated in different approaches
focusing on different aspects of the discriminatory process is very limited.
70
MAHZARIN R.BANAJI&ANTHONY G. GREENWALD, BLIND SPOT: HIDDEN BIASES OF GOOD PEOPLE. (2013). see also , MAX H. BAZERMAN & ANN
E. TENBRUNSEL, BLIND SPOTS: WHY WE FAIL TO DO WHAT'S RIGHT AND WHAT TO DO ABOUT IT (2011).
71
For an overview of this approach see Lobel, Orly. "Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Leal Thought,
The." Minn. L. Rev. 89 (2004): 342.
The integrative approach which combines the various social sciences, would also lead to a
greater integration of the focuses of where employment discrimination occur. Discrimination in
employment is experienced not only through decisions such as hiring, salary recommendations, and
promotion, but also through day to day experiences in the workplace, interactions with other
employees. We have argued that a fuller account should attempt to explain the decision-making
process, the social and organizational context of the decision, and the requirements and limits of the
relevant laws. To achieve this holistic view of employment discrimination, the research should
combine lab, field, and legal lines of research, and be conducted in a way that makes a reciprocal flow
of insights possible. The need for integrative research design is being amplified when one accounts for
the conscious and unconscious discrimination processes which we have argued to vary in it relative
impact across different social categories such as race, sex, age, religion and ethnicity, and across the
different stages of employment including the hiring stage, the promotion stage, the firing stage, etc.
Finally, we have argued that the need for an integrative approach to employment discrimination
follows also from the tension between universal and local social phenomena. Although sometimes
decision making processes are viewed as universal – and therefore universally applicable, especially in
psychology, in areas such as stereotypes, the effects of the local culture and context ought to be taken
into account. Hence for example, we have argued that while it could be shown that there is much
difference between the treatment of blacks by whites in the U.S and Arabs by Jews in Israel, there is
much to be learned both from the differences and the similarities between the two cultures.
We have suggested some tentative prediction which could arise from such an integrative
approach. For example in hiring decisions, job candidates will experience more discrimination on the
basis of gender, race and age than on the basis of other less visible traits like religion and sexual
orientation. But this would changes in promotion context where employers’ knowledge about the
candidate is much greater. In addition, traits that are discriminated against vary also according to
whether they are perceived as immutable or voluntary. Race, gender, and age are generally perceived
to be non-voluntary characteristics, so that people cannot opt in and out of them. Religion, however, is
perceived by many to be more within a person’s control. Finally, adopting a practice where employers
might need to justify their decision is unlikely to create similar effects across all social categories.
We have used this line of arguments to suggest that by creating an integrative approach will
give behavioral sciences an ability to offer a more comprehensive agenda for policy change. Taking
such an approach both theoretically and methodologically could deal with many possible criticism and
would increase the chances that knowledge about human behavior will be able to change legal policy.
Employment discrimination provides a good demonstration of how much could be missed in
the way knowledge about human cognition is transferred into policy making. Much of the classical
research in psychology tries to explore a relatively narrow area of human behavior to be able to
explore it rigorously. A behaviorally informed legal policy needs to be able to provide a broader
perspective on human behavior, which will be sensitive to context, to demographics, to various modes
of decision making and to various situations in which employment discrimination might arise.