Wednesday, January 16, 2013

Choice and Equality

Equality and individual decision-making have long had a fraught relationship in our national history. One of the more fascinating recent developments in psychological research on discrimination has been to begin to explore the ways that choice may instinctively cause us to temper our views on equality.  Thus, for example, recent psychological research has shown that simply causing respondents to think about choice in a mundane setting (e.g., a person going about their morning routine) can cause them to show significantly lower levels of support for equality in completely unrelated contexts.  Simply thinking about choice causes us to be less likely to support affirmative action, more likely to believe that gender discrimination no longer exists, and more willing to view substantial wealth disparities as normatively benign.

I have been exploring the implications of this research for recent proposals to turn towards constitutional Due Process / liberty claims as a vehicle for equality arguments.  In that context, I tend to think the psychological research suggests a greater need for caution—a greater recognition that liberty and equality may not always be viewed by adjudicators as complimentary—than has been recognized by many recent scholars. 

But I also think (although I have not seen any full exploration of these issues to date) that employment law may be equally helpfully informed by this psychological research.  Might this help us understand why, as Vicki Schultz has documented, the “lack of interest” defense has been so robust in cases involving severe statistical disparities in women’s employment?  Might it help us to understand why our response to continuing substantial pay disparities between men and women has been so muted– a sense that this is, after all, the result of women’s choices?  If in fact simply thinking about choices causes us to see less discrimination, and to tolerate more inequality, it seems that employment discrimination contexts where choice is a possible explanation for observed disparities will be particularly vulnerable to failure. 

It also suggests a reason why rhetoric regarding “employment at will” may have a real impact on outcomes in employment discrimination cases, despite the fact that it does no doctrinal “work” (since if the employer discriminated, they are liable whether or not employment at will exists as a background norm, whereas if they did not discriminate, the background norm of employment at will again does not matter).  If simply causing someone to think about choice in a totally neutral setting causes them to embrace a less pro-equality viewpoint (as the psychological experiments have demonstrated), it would be unsurprising if “employment at will” rhetoric—which emphasizes precisely the freedom of employers to choose to terminate employment for any reason—has similar “equality reducing” effects on adjudicators. 

In short, this is an area in which it seems to me there are many potential avenues of interesting exploration, for both law and psychology scholars.  As we better understand the contours of the choice/equality divide, we may be able to begin to think about practical ways to constrain undesirable spill-over effects where they exist.

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