My corner of the academic cabbage patch is consumed these days with whether intent to discriminate includes “unconscious bias,” one of many terms for a phenomenon that is helpfully taxonomized by my colleague Mark Poirier in his article Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination: Is Cognitive Bias at Work a Dangerous Condition on Land?, 7 EMPLOYEE RTS. & EMP. POL’Y J. 459 (2003). Research in this area includes the Implicit Association Test, which you can take from the comfort of your computer to determine your implicit attitudes towards a wide variety of traditional discrimination subjects (race, sex, sexual orientation), and some not so traditional (Presidents). Needless to say, there is a great controversy as to whether this test measures what it purports to measure, and, if so, whether such attitudes are likely to affect conduct in real world situations, and, if so, whether the law can or should do anything about it. Amy Wax savaged the IAT in a co-authored commentary in the Wall Street Journal last December.
Now along comes Mel Gibson and pushes the issue into the limelight. Sort of….