Rethinking Employment Discrimination Harms

Establishing harm is essential to many legal claims. This Article urges the law to adopt a more expansive notion of the harms of employment discrimination to better reflect the cognitive functions of individuals who face discrimination. While the effect of implicit bias on the mental state of potential discriminators is well-worn territory in antidiscrimination scholarship, little has been written about a sister theory: stereotype threat. More than a decade’s worth of social psychology research indicates that when a person is conscious of her membership in a particular group and the group is the subject of a widely recognized stereotype, that awareness can directly affect her performance of stereotype-related tasks, creating a self-fulfilling prophecy. For example, a common gender stereotype holds that women are not as good at math as their male counterparts. Thus, when asked to indicate sex before a math test, women tend to perform worse. As a result, if an employer draws attention to an employee’s protected status, that seemingly harmless act could impact the employee’s mental state and, in turn, her job performance. Despite the well-known effects of stereotype threat, this Article is the first to systematically apply that theory to employment discrimination law