Originally from Dispute Resolution Journal

W.E.B. DuBois, an educator and author and a founder of the NAACP, said at the turn of the last century that “the problem of the 20th century is the problem of the color-line in relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea.”1

This article posits that the words and underlying concerns of W.E.B. DuBois still persist today. However, the challenge facing our society in the 21st century is not solely identifying and eliminating the blatant or overt forms of discrimination contemplated by W.E.B. DuBois.2 Rather, the real challenge facing our society is how to deal effectively, equitably, and fairly with two other forms of discrimination: unconscious discrimination and subtle discrimination.

Harvard professor and psychiatrist Chester Pierce was one of the first scholars and observers to recognize this phenomenon and its damaging cumulative effect. Professor Pierce referred to these forms of discrimination as “micro-aggressions.”3 MIT professor and ombudsperson Mary P. Rowe, building upon Professor Pierce’s theory of “micro-aggression,” coined the terms “micro-inequities” and “subtle discrimination.”4 Unlike Professor Pierce, however, Professor Rowe viewed the phenomenon of micro-inequities and subtle discrimination primarily within the employment context.

The authors of this article do not ignore the continued existence of overt and blatant discrimination in our society today. The incidents of hate crimes, police profiling and other documented acts of overt discrimination in the workplace unequivocally belie any such possible suggestion. The authors, however, assert that these forms of unconscious and subtle discrimination or “micro-inequities” (hereinafter the latter is referred to only as “subtle discrimination”) often serve as the basis for many, if not most, claims of workplace discrimination.

The authors further assert that because these forms of discrimination are very difficult to prove, they are arguably not actionable under our various federal and state antidiscrimination laws. Consequently, the authors argue that such ADR processes as EEO/employment mediation should, as a matter of public policy, be used as an effective tool to resolve these claims of unconscious and subtle employment discrimination. These processes along with internal conflict management systems may also be effective tools in inhibiting employment decisions unconsciously based on stereotypes.

In order to implement antidiscrimination laws and address the phenomenon of unconscious and subtle discrimination, the authors, borrowing from “Employing the Law To Increase the Use of Mediation and To Encourage Direct and Early Negotiations,”5 by Professors Nancy Rogers and Craig McEwen, argue that the law must be used to increase the early negotiation and use of mediation in order to equitably and fairly resolve these claims. Accordingly, the authors recommend the enactment of the proposed legislation entitled the National Employment Dispute Resolution Act of 2000 (NEDRA).

This article shall define and discuss the phenomenon of “unconscious” and “subtle” discrimination. Within this context, the authors shall present the economic and psychological costs incurred by these types of disputes; the potential cost savings to both employers and complainant workers and the possible benefits to the public justice system derived from using mediation and other conflict management and dispute resolution processes.

Lastly, as a matter of good, sound and practical public policy, the authors advocate the need, for the federal government (and possibly various state and local governments) to require federal agencies and state contractors to establish and implement internal conflict management systems. These systems, as a voluntary option, would afford access to external professional mediators and other neutral workplace dispute resolvers to assist in the resolution of EEO and other employment disputes including those stemming from claims of unconscious or subtle discrimination. The authors suggest that the latter internal conflict management systems be fashioned after the proposed NEDRA and comport with the “Guidelines for the Design of Integrated Conflict Management Systems Within Organizations,” recently published by the Society of Professionals in Dispute Resolution.6