Tuesday, June 17, 2014


New ImageI'm just back from a great conference -- Future Directions in Psychology, Public Policy, and the Law -- at the University of Nebraska in Lincoln, where  I presented on "Microaggression and the Law."  And, no, I'm not conceited enough to think that that talk made the conference great. Indeed, the best thing about the conference as a whole was the wide range of subjects, including discrimination, immigration, sexual orientation and gender identity, and educational policy, all with a focus on how empirical research could contribute to the legal debate.

But back to microaggression, a word that has been all the rage in the last few months in the media and on college campuses. The concept -- as framed by Professor Derald Wing Sue -- describes “brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, negative racial slights and insults to the target person of group.”  Dr. Sue divides the phenomenon into microassaults, microinsults, and microinvalidations.

The question for me was whether the concept could have much traction in the law.  Aside from microassaults, the answer seems to be no.   No litigant has successfully deployed the concept, and the only attempt to do so (coincidentally, before the Nebraska Supreme Court) failed pretty miserably.  And only a handful of law review articles wrestle with microaggression despite a cottage industry in the psychological literature.

I should probably qualify this conclusion a bit: "microassaults," such as racial epithets, obviously play an important role in discrimination and harassment cases. But this category adds the least to our understanding of human behavior, and, indeed, some question the prefix "micro" when the n-word is used in the workplace or on campus.  As a society, we do tend to take this kind of stuff seriously. Ask Donald Sterling.

It's "microinsults" and "microinvalidations" that are more interesting -- probably exactly because they are less visible but still potentially devastating to the victims. The former category, according to Sue, includes behaviors that are insensitive, rude, or inconsiderate of a person's identity, but do not necessarily reflect an intent to harm by the actor. Microinvalidations, in contrast, consist of behavior that minimizes the thoughts, feelings, or experiences of targets.

To get an idea of what this might mean in concrete terms, consider some of Sue's more extreme cases: a microinsult might occur when a white student asks an Asian classmate for help with math, the message being that Asians are all good at the topic. And a microinvalidation might occur when an institution announces a color-blind philosophy, which implicitly denies the lived experience of minorities.

I'm intentionally focusing on the more extreme applications of microaggression theory as it is currently conceived. In those outer reaches, it seems unlikely to have much application in the law and maybe not much more in "softer" settings, like HR training.

But Sue is certainly correct that low-level conduct can be personally and professionally difficult and even devastating-- and maybe torpedo institutional efforts at diversity.  The challenge for the psychologists may be to come up with a more rigorous definition of the phenomenon, which can then lead to empirical studies, and perhaps, to deployment in discrimination or harassment suits.


Thanks to Dr. Richard Wiener of the UNL Psychology Department for putting together a great Conference and to Steve Willborn at the College of Law for being fascinating both as tour guide and commentator.


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