Perceptual Segregation

This Article argues that outsiders and insiders tend to perceive allegations of discrimination through fundamentally different psychological frameworks. A workplace may be spatially integrated and yet employees who work side by side may perceive an allegation of discrimination through very different lenses because of their disparate racial and gender identities. Most “implicit bias” legal scholarship has focused on the cognitive processes of “insiders” (whites and men) in assessing and evaluating “outsiders” (people of color and women). This Article opens a new field of legal scholarship and complements the implicit bias literature by drawing on empirical studies to explicate the cognitive processes of outsiders in interpreting potential incidents of discrimination. Studies show that blacks and whites are likely to differ substantially in how they conceive of and define discrimination. While many whites expect evidence of discrimination to be explicit, and assume that people are colorblind when such evidence is lacking, many blacks perceive bias to be prevalent and primarily implicit. Studies have also revealed that men and women differ significantly in assessing incidents of sexual harassment. Differences in perception have profound implications for how our judicial machinery, which consists predominantly of white male judges, resolves antidiscrimination claims. Judges are likely to impose their own contingent conceptions of discrimination, with little or no awareness of the perceptual limitations shaping their judgments. This Article explores reforms in the judicial system and in workplaces that could help sensitize both insiders and outsiders to each other’s perspective and break down the rigidity in these clashing mindsets.