Hastings Law Journal Volume 72 Issue 1 Article 7 11-2020 Beyond Implicit Bias: Litigating Race and Gender Employment Discrimination Using Data from the Workplace Experiences Survey Joan C. Williams Rachel M. Korn Sky Mihaylo Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Joan C. Williams, Rachel M. Korn, and Sky Mihaylo, Beyond Implicit Bias: Litigating Race and Gender Employment Discrimination Using Data from the Workplace Experiences Survey, 72 HASTINGS L.J. 337 (2020). Available at: https://repository.uchastings.edu/hastings_law_journal/vol72/iss1/7 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. Beyond Implicit Bias: Litigating Race and Gender Employment Discrimination Using Data from the Workplace Experiences Survey† JOAN C. WILLIAMS†, RACHEL M. KORN† & SKY MIHAYLO† This Article joins other voices1 in challenging what I will call the “implicit bias consensus” in employment discrimination law, first crystallized in the work of Susan Sturm2 and Linda Hamilton Krieger.3 The implicit bias consensus has two basic components. The first is that most employment discrimination today is what Sturm christened “second generation employment discrimination” caused by implicit bias that is uncontrollable and unconscious, subtle and ambiguous.4 The second component of the consensus is that Title VII is ill-suited to address second generation discrimination.5 † This Article is dedicated to the memory of Professor Katherine W.