Narrative excerpt from Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stanford L. Rev. 1161 (1995). For a full version of the article from which this is drawn, visit this site.

A few years ago, I had one of those experiences that slips almost unnoticed into your consciousness and then quietly wreaks havoc on your tidy way of looking at something.

I was working on an unremarkable Title VII case. My client was a young Salvadoran man who had been the only nonwhite employee at a box manufacturing plant in California’s Central Valley. He had been denied a promotion, then fired, and he was convinced that he had been treated less favorably than his Caucasian coworkers because of his national origin….

This was not going to be an easy case. The employer had no facially discriminatory policies, nor any identifiable neutral policies that I might argue disproportionately disadvantaged Latinos. No one had made any derogatory ethnic comments, so far as I could determine. But there was a subtle, yet discernible pattern of differential treatment emerging from the time records and personnel files obtained in discovery.

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As is usual in employment discrimination cases, the challenged manager adamantly denied that my client’s national origin played any part in his decisionmaking process.

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Later that day, [after interviewing the manager,] I came back from the Valley, changed my clothes, grabbed the newspaper, and sat down with my three-year-old son to watch Sesame Street. That’s when it happened. I looked up from my newspaper and saw the television screen divided into four sections. In each section was a child in a raincoat—three of them red, one yellow—and Big Bird was singing:

One of these kids is not like the others.

One of these kids just isn’t the same.

One of these kids is not like the others.

Now it’s time to play our game.

The point of the game was, of course, to figure out that the child in the yellow raincoat was different than the three children in the red raincoats. The pedagogical purpose of the game was to teach children to categorize—to notice differences between objects and to group those objects, on the basis of those differences, into categories.

Children must learn to categorize. They must categorize to understand speech, to move safely through their environment (“Don’t touch a strange dog; it might bite you. But yes, it’s okay to touch a strange cat; cats don’t bite.” “Don’t get into a stranger’s car; but yes, you can get into Uncle Hurley’s car; he’s a relative.”).

Children must learn to categorize before they can learn much of anything else. And when they get a little older, before they can learn to read, they have to learn to stereotype. You simply can’t read if you can’t stereotype. You have to minimize all those differences between the ways different people write an “F.” Without even thinking about it, you have to exaggerate the subtle differences between a capital “D” and a capital “P.” Your mind has to fill in when part of a line is missing, or ignore a stray mark that your eyes indeed see, but your mind knows does not really go with an “a.”

It seemed ironic. There I sat, watching with maternal satisfaction as Big Bird taught my son to notice and categorize by color differences, while the plant manager’s indignant claim of colorblindness echoed in my mind. It unsettled me as I sat there, and left me with a vague sense of disquiet.

In retrospect, I see that this experience was a turning point in my thinking about intergroup relations, discrimination, and equal employment opportunity. In the years that followed, I became increasingly uneasy about the enterprise in which I, as a Title VII lawyer for over a decade, had engaged. As I encountered more offended, defensive decisionmakers accused of discrimination, and as I counseled and consoled more embittered employees who knew they had been treated differently because of their race or gender or ethnicity but could not, as the law requires in such cases, prove that their employer harbored a discriminatory motive or intent, I became convinced that something about the way the law was defining and seeking to remedy disparate treatment discrimination was fundamentally flawed. This article represents my endeavor to understand what that “something” might be.

A Note on How This Changes Minds

Every semester, I start off my courses grappling with the concept of intent and its role in proving legal claims. Among other classes, I teach torts and employment discrimination law: two courses that do not seem to have that much in common. And yet, the first topic I discuss in both classes is intent in the context of intentional torts and disparate treatment theory, respectively. What quickly transpires is that intent is elusive and that the plaintiff’s mission to prove it is a difficult one. 

By the time they reach law school, some of my students have heard about heuristics, attribution theory, and stereotypes in their undergraduate studies. Many of them have taken the online Harvard Implicit Association Test and found out that they too hold cognitive/implicit biases. Nevertheless, Krieger’s article not only explains those terms to students who are unfamiliar with them, but also does something even more profound and critical. The narrative about Sesame Street’s Big Bird teaching Krieger’s son to categorize individuals by their different traits allows students to internalize the fact that oftentimes cognitive biases operate automatically without intent or motive—and are what stand behind decision making. A substantial body of work in social psychology, which Krieger adequately summarizes, supports this proposition that cognitive/implicit biases are a byproduct of this child-like, innocent categorization process that makes the world go round. In Krieger’s words: “intergroup discrimination can be cognitive as well as motivational in origin.”

The article therefore helps students understand how legal structures—here, Title VII’s theory of disparate treatment requiring the proof of intent to discriminate—may be in tension with other fields of study like psychology and cognitive science. It serves as an important wake up call for students to the realist theory of law, one that is particularly crucial in wake of the recent Supreme Court decision abolishing affirmative action in higher education and directing colleges to take on a colorblind approach to admission. As someone studying the ways biases arise in the context of health care and disability rights, this article has been not only profound for my own work, but also for teaching students about the long way ahead to achieving justice for marginalized groups through the courts. (Doron Dorfman, 07/18/23)