Unconscious Bias and Self-Critical Analysis: The Case for a Qualified Evidentiary Equal Employment Opportunity Privilege

Recent breakthroughs in social psychology have resulted in the ability to measure unconscious bias scientifically. Studies indicate that prejudiced responses are largely unconscious, the result of normal cognitive processing and stereotypical associations of which the prejudiced subject may be completely unaware. The studies also indicate that a subject's awareness of the discrepancy between her conscious, egalitarian value system and her unconscious prejudice is a critical step towards the convergence of her cognitive functioning and her egalitarian viewpoints. Antidiscrimination legislation requires a showing of intent to discriminate to obtain relief in all but a small percent of circumstances.

The result is a legal framework that does not, and cannot, properly redress most instances of discrimination. While the use of unconscious-bias testing may be more effective than antidiscrimination legislation in identifying and redressing the cognitive phenomenon of discrimination, evidence law does not support its use because test results are not privileged against discovery in discrimination lawsuits. This Article argues that in light of the enormous potential social benefit of unconscious-bias testing, a qualified evidentiary privilege should be recognized to encourage its use.