Fitting the Forum to the Pernicious Fuss: A Dispute System Design to Address Implicit Bias and 'Isms in the Workplace

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persist. This discussion takes place in three parts.

Part One describes implicit bias, providing an overview of the relevant research, explaining how it shapes our behavior, and identifying various methods to temper its influence. Part Two demonstrates the failure of our existing legal system and existing EEOC mediation program to address workplace discrimination allegations caused by implicit biases. Part Three prescribes a more realistic dispute system design that is better able to respond to discrimination caused by the unconscious biases of the actor.