Perceiving subtle sexism: mapping the social-psychological forces and legal narratives that obscure gender bias.

• Author: Brake, Deborah L.

In early January of 2007, the AALS Section on Women in Legal Education held a panel discussion on "Subtle Sexism in Our Everyday Lives" at the AALS Annual meeting in Washington, D.C. Such discussions about the barriers facing women in the legal profession often trigger a fatigue with talking 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...