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...about gender and a denial by some that gender remains worthy of attention. (1) The denial of gender bias can occur at a collective level, in which detractors urge "getting past" gender in setting an agenda, and at an individual level, in which individuals deny the role of gender bias (or gender privilege) in their own lives. (2) The denial of gender bias at the individual level can fuel a collective denial of the importance of gender issues. This Article explores the complexity of perceiving gender bias at the individual level, which in turn affects understandings of the role of gender in society more broadly, and surveys some of the psychological processes that contribute to the denial of gender bias in everyday life. In this Article, I am concerned both with how women law faculty and women lawyers--the immediate subjects of the panel discussion perceive gender bias, and with the more general forces that complicate perceptions of gender bias across professional lines.
Sorting out the influence of gender on an individual's professional life is no easy task. For women law faculty, contemplating the role of subtle sexism might raise a nagging set of questions. How does my gender affect my professional life? Do students react differently to me because of it? (3) What explains that small but disturbing set of hostile course evaluations in my large required classes, and do my male colleagues get them too? (4) Is it my imagination, or are those guys in the back row challenging my authority? (5) Is the tenure process gendered or just crazy? (6) How does gender shape my professional obligations and institutional commitments? (7) Why are so many women on the faculty silent during faculty meetings, while almost all of the big talkers are men? (8)
These questions defy easy and absolute answers, and in this respect, are no different than similar questions that might interrogate the role of gender in other professional settings. We live in a world where gender, race, and sexuality form a complex web of identity that subtly affects, in myriad ways, how people respond to us. As we know from life experience and the study of law, facts are messy and causation is tricky to pin down. How do we make sense of the uncertainty? Social psychologists use the term "attributional ambiguity" to refer to the "uncertainty about whether the outcomes you receive are indicators of something about you as an individual, or indicators of social prejudices that other people have against you because of your stigma." (9) Short of written policies that openly discriminate or overt expressions of prejudice, discerning the presence of gender bias necessarily involves attributional ambiguity.
The messy reality of perceiving gender bias contrasts sharply with the common assumption, reflected in discrimination law, that a person's belief that she has experienced discrimination is fixed and immediate. My interest in exploring the process by which people come to believe they have experienced gender bias grew out of my work on an amicus curiae brief filed in Ledbetter v. Goodyear Tire & Rubber Co. (10) In Ledbetter, the Eleventh Circuit ruled that an employee must bring a Title VII pay discrimination claim within 180 days of the time the intentionally discriminatory decision was first made or else be time-barred from ever bringing the claim, even if the employee continues to receive less pay because of sex. (11) The lower court's decision treats pay discrimination as analogous to other "discrete" discriminatory acts governed by the rule the Supreme Court adopted in National Railroad Passenger Corporation v. Morgan. (12)
In Morgan, the Court held that each discriminatory act, such as a hiring, firing, promotion, demotion, or transfer decision, triggers Title VII's statute of limitations period, even if it is part of a related pattern of discrimination that extends beyond that "discrete" act. (13) In so holding, the Court rejected the more lenient continuing violation theory, which lower courts had applied to allow plaintiffs to toll the limitations period for discriminatory acts that are part of a larger pattern of related discrimination. (14) Without directly stating where pay discrimination claims fall on this continuum, the Court in Morgan distinguished discrete discriminatory acts from hostile environment harassment. (15) The Court crafted a different and more lenient rule for hostile environment harassment, treating each harassing act as part and parcel of the larger pattern of harassment, and tolling the running of the limitations period until the last act of harassment occurs. (16) The Court justified the special rule for harassment because it typically requires a number of harassing acts in order to have an actionable claim. (17) At no point did the Court consider how long people take to realize they have experienced discrimination, nor did it acknowledge the difficulty of discerning discrimination.
This body of precedent assumes that employees possess immediate and certain knowledge of the moment in time at which discrimination occurs. Perceiving discrimination is assumed to be uncomplicated, such that plaintiffs who do not complain shortly after discrimination occurs are vulnerable to criticism for "sitting on their rights." (18)
One modest exception in the doctrine moderates this assumption, but it nevertheless stops short of acknowledging the complexity involved in perceiving discrimination. Existing Title VII law leaves open the possibility that a discovery rule might delay the running of the limitations period until the plaintiff knew or should have known that she experienced discrimination. This concession, however, has not seriously disrupted the law's assumption that knowledge of discrimination is unproblematic. For one thing, the Supreme Court has been content to leave the existence of a discovery rule in Title VII cases an open question, an indication that it views justifiable delays in perceiving discrimination to be the exception, rather than the norm. (19) In like fashion, the Eleventh Circuit in Ledbetter simply observed that the question of whether equitable considerations justified a tolling of the limitations period in that particular case had not been litigated. (20) More importantly, perhaps, even those lower courts that have adopted a discovery rule in Title VII cases have failed to grapple with the complexity of perceiving discrimination. These courts have applied the discovery rule to set the moment in time when the plaintiff should have known of the alleged discrimination at the point when the plaintiff first learned of the adverse job decision (or in the case of pay, that a male comparator earns more), rather than the moment when the plaintiff actually perceived the discrimination. (21) Thus, even the law's allowance for a discovery rule does not seriously disrupt the assumption that knowledge of bias is uncomplicated and readily inferable from the existence of an injury.
In addition to the assumptions reflected in law, the assumptions embedded in popular culture also conflict with the realities of how people perceive discrimination. The dominant story in mainstream culture is that women and minorities are hyper-vigilant in perceiving bias, to the point of mistakenly perceiving sexism and racism when it does not really exist. Mainstream culture is replete with derogatory references to "feminazi" women who blame everything on gender, and with depictions of strident women who are too quick to blame sexism for their troubles. (22) Likewise, people of color are derided for "playing the race card," as if an attribution to race is always an artifice and never an insight. (23) This cultural narrative encourages suspicious treatment of those who would attribute adverse outcomes to gender or race bias. (24)
Research in the field of social psychology suggests that the realities of perceiving bias are much more complex than either legal doctrine or dominant cultural understandings acknowledge. First, the widespread cultural assumption of hyper-vigilance is largely a myth. Although there is modest evidence that some persons who belong to stigmatized social groups are highly sensitive to prejudice cues, (25) the weight of evidence suggests that under-perception of gender bias is closer to the norm than hyper-vigilance. (26) Studies consistently show, for example, that the vast majority of women who experience behavior that objectively qualifies as sexual harassment do not perceive that they have been sexually harassed. (27) More generally, social psychologists have long observed a disconnect between women's recognition that women as a group experience discrimination and individual women's widespread denial that they have personally experienced it. (28) This finding was first noted in a 1978 study in which 400 male and female workers rated their personal job satisfaction and grievances no differently, despite objective evidence that the women in the study were subjected to sex discrimination. (29) Subsequent research has updated and added to the evidence supporting the under-perception thesis. (30)
Second, social psychology research refutes the assumption that knowledge of discrimination is uncomplicated and immediate. In reality, there are a number of obstacles to perceiving oneself as a victim of discrimination. These obstacles function as a form of "static" or "interference" that clouds the picture and distorts the process of perception. Such "interference" is especially likely when gender bias takes a subtle form, without obvious markers. Not surprisingly, people are much better at detecting prejudice when the intensity of prejudice cues increases, and are less able to do so when the bias is subtle or more ambiguous. (31)
In a world characterized by attributional uncertainty, a number of psychological and social processes converge to create a good deal of interference with perceptions of gender bias. These processes make "seeing" how sexism affects daily life a complicated endeavor. Rather than clear the fog to get a better picture of how gender influences life experience, the dominant narratives of discrimination law tend to reinforce the perceptual static. This is perhaps especially true for those of us in the legal academy who are more likely to have our understandings and perceptions shaped by the discourses and narratives of law.
This Article surveys the social psychology literature on the processes that complicate perceptions of gender bias and explores how these processes are reinforced by the narratives of discrimination law. Part I draws on social psychology research to chart the obstacles that interfere with perceiving subtle sexism. Part II considers how the narratives of discrimination law further suppress perceptions of bias. The point is not that law leaves behind subtle gender bias in the discarded category of "not actionable" an argument well made by other legal scholars. (32) Rather, it is that law's knowledge-producing function obscures subtle gender bias from view, reinforcing the ideology that merit, and not gender, explains women's situations in the workplace. As explained below, law performs this function by setting up narratives that constrain the likelihood of perceiving and challenging gender bias. Finally, Part III briefly considers the example of student evaluations as an illustration of how these processes can converge to muddy insights into how and whether gender bias shapes our professional lives.
I. LESSONS FROM SOCIAL PSYCHOLOGY ON THE COMPLEXITY OF PERCEIVING GENDER BIAS
A number of cognitive and motivational processes exist that make it difficult for a person to see herself as the target of gender bias. This section surveys some of these barriers and explores how they intersect to submerge and complicate individual awareness of gender bias and its influence on women's lives.
A. The Belief in a "Just World," the Ideology of Individual Responsibility, and the Reluctance to Blame Others
Social psychologists have identified a psychological drive to believe that the world is fundamentally "just" in the sense of meritocratic, such that people get what they deserve and are not held back by unfair considerations such as gender or race. (33) Attribution of negative outcomes to discrimination clashes with this belief in a "just world." As a result, women and people of color who strongly believe in a "just world" tend to discount discrimination as an explanation for negative outcomes and instead blame themselves. (34) For example, researchers have found that the more that members of lower-status groups (specifically, in this research, Latino/a Americans and women) "endorsed the ideology of individual mobility (e.g., agreed with statements such as "advancement in American society is possible for individuals of all ethnic groups"), the less likely they were to report that they personally, or members of their group, were targets of discrimination." (35) The influence of "just world" ideology on perceptions of discrimination is heightened when, as is often the case, there is ambiguity about why a particular negative outcome occurred. (36) When prejudices are subtle and circumstances ambiguous, adherence to "just world" ideology is especially likely to lead members of stigmatized groups to favor internal explanations over bias as the reason for a poor outcome. (37)
Interestingly, adherence to "just world" ideology does not have the same effect on perceptions of discrimination for all social groups. Members of high-status social groups, such as white males, are more likely to attribute a negative outcome to personal discrimination when they adhere to the belief in a "just world." (38) Accordingly, experimental research has found that while adherence to a belief in a "just world" lessens the likelihood that members of lower-status groups will perceive discrimination when rejected for a position by higher-status group members, members of higher-status groups who endorse "just world" ideology are more likely to blame discrimination for their rejection by a member of a lower-status group. (39)
Because the belief in a "just world" is pervasive, this ideology exerts a strong influence on perceptions of discrimination. (40) It may be especially powerful within institutions highly steeped in the ideology of merit, such as the legal profession in general and the legal academy in particular. (41) Settings where the belief in meritocracy is especially pronounced discourage perceptions of bias against those who do not rise to the top.
As defined above, the belief in a "just world" is infused with the ideology of individual responsibility. This ideology appeals to many people because it enables them to believe that they have control over their destiny. (42) Seeing oneself as a victim of discrimination contradicts that belief. The ideology of individual responsibility "turn[s] the word victim into a synonym for failure or irresponsibility." (43) This belief system creates an aversion to being perceived as a victim of discrimination, especially when one's victim status is linked to membership in a social group whose members are stigmatized and devalued. (44)
The belief in individual responsibility enables a person to acknowledge that members of her social group might experience discrimination, yet preserves her individual agency by discounting the possibility that she herself has experienced discrimination. (45) For example, women who are sexually harassed might resist labeling their experience as such to preserve their belief in individual responsibility and avoid the stigmatized identity of a harassment victim. (46) Likewise, women's generally low level of apparent dissatisfaction with their lower pay--a phenomenon that is described below (47)--may reflect their aversion to being cast as victims if they attribute the disparity to discrimination. (48) In my experiences representing young women in Title IX challenges to unequal athletic opportunity, I was often struck by how frequently female athletes in these cases went out of their way to proclaim that they were not feminists. (49) In their unprompted disclaimers, I sensed an anxiety about being seen as victims for bringing a discrimination suit, and a desire to avoid a deeper stigma of victimhood that a broader challenge to sexism might entail. Even some young women who identify as feminists emphatically deny that they personally have experienced sexism--a phenomenon I have often witnessed among students in my gender law classes. Some social psychologists suggest that the desire to see oneself as an agent with control over one's life, rather than as a victim of external forces, best explains the gap between the perception of widespread discrimination against one's social group and the widespread denial of personal discrimination. (50)
A corollary to the belief in individual responsibility is the reluctance to blame another person for a negative outcome in one's own life. Under common understanding and prevailing legal doctrine, if there is sexism there must be a sexist. (51) Yet, social psychologists have observed an emotional reluctance to perceive discrimination against a person when it requires identifying an individual villain. (52) Termed "blame avoidance," this phenomenon helps explain why women and other members of subordinated social groups are more likely to recognize the existence of discrimination against their social group but deny that they have personally experienced it. (53) Recognizing systemic and anonymous discrimination against women does not require an identifiable villain, but perceiving discrimination against an individual woman does.
One study in support of the finding that people resist blaming others under conditions suggestive of prejudice involved pairs of Canadian students consisting of one white student and one aboriginal student who were grouped together for the purpose of interacting in a get-acquainted conversation. (54) Prior to the pairing, the white students were given a test that measured racial prejudice. The students were then grouped into mixed-race pairs for discussions. The researchers found that, in pairings with a highly-prejudiced white student, the aboriginal student left the interaction feeling worse than the aboriginal students who were paired with less-prejudiced whites, suggesting that the former set of interactions went badly. (55) However, instead of blaming their white cohorts or perceiving them as prejudiced, the aboriginal students who were paired with the high-prejudice white students blamed themselves for their negative feelings. (56) From this and other research, the authors surmised that people tend to think about interactions with others in terms of what they reveal about themselves and not what they reveal about the others. The authors interpreted their findings to support the thesis that in everyday life members of low-status groups are unlikely to detect prejudice, and instead internalize the negative emotions produced by interactions that are tainted by prejudice.
The belief in a "just world," the belief in individual responsibility, and the reluctance to blame others function together to discourage perceptions of gender bias.
B. The Default...
NOTE: All illustrations and photos
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