If courts are going to enforce constitutional and statutory prohibitions against discrimination on the basis of certain social categories, such as race and gender, they must first define what discrimination is. Similarly, social scientists studying discrimination or computer scientists seeking to design nondiscriminatory algorithms require a prior concept of what they are seeking evidence of or avoiding in design. Leading conceptions of discrimination in both law and social science define discrimination in counterfactual terms: it is present if the outcome would not have happened if the plaintiff were of a different social status. Social categories as causes are equated with “treatments” in randomized controlled trials. Detecting discrimination, on this view, requires us to isolate the causal impact on an outcome of a decisionmaker’s perception of a candidate’s race or gender status from other perceived differences between candidates, just as one would seek to isolate the causal effect of administering a pill from confounding differences between the treated and control groups. This conversation will raise normative and conceptual concerns with the causal model of discrimination.
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Issa Kohler-Hausmann is Professor of Law at Yale Law School and Associate Professor of Sociology at Yale. Born and raised in Milwaukee, Wisconsin, she holds a PhD from New York University in sociology, a JD from Yale Law School, and a BA from University of Wisconsin-Madison. Her book Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (Princeton, 2018) is a mixed method multi-year study of New York City’s lower criminal courts in the era of mass misdemeanor arrests. The book was awarded Herbert Jacob Book Prize from the Law and Society Association, the Albert J. Reiss Distinguished Scholarly Publication Award, Crime, Law, and Deviance Section of the American Sociological Association; the Mirra Komarovsky Book Award, Eastern Sociological Society; and was a finalist for the C. Wright Mills Award, Society for the Study of Social Problems. Her current research addresses the relationship between social kinds and causal claims, with a special interest in the methodological and theoretical issues entailed in stating and proving discrimination and equal protection claims. Admitted to practice in New York and Connecticut States, Eastern and Southern Districts of New York, and the Western District of Wisconsin, Kohler-Hausmann maintains an active pro bono legal practice. Currently, her practice addresses parole release for persons serving life sentences for crimes committed as juveniles.
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