Discrimination by Default

How Racism Becomes Routine

Lu-in Wang

• Éditeur: NYU Press
• Année: 2006
• ISBN:
  9780814795064
• Sujet: Derecho
• Sous-sujet: Ley contra la discriminación

Much as we “select” computer settings by default—reflexively, without thinking, and sometimes without realizing there are other options—we often discriminate by default as well. And just as default computer settings tend to become locked in or entrenched as the standard, discrimination by default creates a situation in which disparate outcomes are expected, accepted, and taken for granted. The killing of Amadou Diallo, racial disparities in medical care, the dominance of Whites and men in certain professions, and even the uneven media attention paid to crimes depending on their victims’ race and class, all might be cases of discrimination by, or as, default.

Wang contends that, today, most discrimination occurs by default and not design, making legal prohibitions that focus on those who discriminate out of ill will inadequate to redress the largest share of modern discrimination. She draws on social psychology to detail three ways in which unconscious assumptions can lead to discrimination, showing how they play out in a range of everyday settings. Wang then demonstrates how these dynamics interact in medical care to produce an invisible, self-fulfilling, and self-perpetuating prophecy of racial disparity. She goes on to suggest ways in which institutions and individuals might recognize, interrupt, and override the discriminatory default.

1

Discrimination by Default, Discrimination as Default

Alex arrived at the restaurant a bit early to meet his friends Tony and Jacqueline, but he hoped to get a table, relax, and unwind with a drink while he waited. The hostess who greeted him told him that would not be possible, as the restaurant’s policy was that all members of a party had to be present before the party could be seated. She offered to take his name and said she could seat his party once everyone had arrived. Although he was anxious to be seated and the restaurant was only half full, Alex reluctantly agreed to wait on the hard bench in the entryway until his friends arrived.

As he sat waiting, several other diners entered and were seated. A White couple walked in and told the hostess they would have a party of four, but their two friends would be arriving later. Alex watched in disbelief as the hostess smiled and immediately showed the couple to a table. By the time the hostess returned to her station, Alex was furious. He strode over to her and announced in a loud voice that she could remove his name from the waiting list; he wasn’t about to lower himself by patronizing a restaurant that treated him like a second-class citizen because he was Black.

The hostess reacted with surprise and anger. She protested that she was not a racist and had not treated him any differently because of his race; she had seated the couple right away because they were “regulars” and she did not want to make them wait in the cold entry hall for their friends. Alex, embarrassed and confused, left the restaurant.

Mary and Todd joined their law firm at the same time, as associates fresh out of law school, and were both assigned (along with a couple of more experienced associates) to work with Dan, a demanding but reputedly brilliant senior partner, on a high-profile case that was to go to trial in a few months. Dan’s style was highly collaborative: he would hold frequent team meetings for all the lawyers on a case, at which they would brainstorm on strategies and arguments. Based on their performance at these meetings, Dan would choose one or two junior associates to take on significant roles at the trial itself—arguing a motion or two, examining or even cross-examining a couple of witnesses—quite a generous approach compared to some of his more rigid, hierarchical partners who tended to keep all the in-court work for themselves.

Mary was thrilled to be chosen for Dan’s team and put in long hours doing legal research and combing through documents. Her initial enthusiasm began to wane after a few team meetings, however. Mary noticed that whenever she suggested an idea, the other lawyers seemed to ignore it and Dan would frequently dismiss it out of hand. Invariably, however, Todd would make the very same suggestion later in the meeting, to quite a different reception: the other lawyers would nod and smile, and, more often than not, Dan would accept the idea and praise Todd for suggesting it.

Mary soon grew discouraged and, after a while, gave up on offering suggestions in favor of simply doing the tasks that Dan assigned her at the end of each meeting. She was not surprised when the trial neared and Dan selected Todd over her to present one of the more important motions to the court. She overheard Dan telling Todd that he was “going to be a star some day.” In contrast, when Mary met with Dan to discuss one of her research assignments, he told her that her work so far had been solid and thorough, but that she “really needed to start showing some initiative” by “thinking out of the box” and coming up with some creative ideas. Mary left Dan’s office feeling frustrated and bewildered.

Professor Smith had a strict attendance policy for her undergraduate psychology class: students who missed more than five classes would be dropped from the course. The professor retained her discretion to excuse absences, but in her syllabus she warned students not to count on her mercy. James, a White sophomore, had already missed five classes when his unreliable Ford Escort broke down again, causing him to miss a sixth class. That same day, Li, also a sophomore, incurred her sixth absence as well. Li was a Chinese immigrant and the only member of her extended family who spoke fluent English. That day it had fallen to her, as it always did, to accompany her grandmother to a doctor’s appointment so she could translate. Although she tried very hard to make it back to school in time for class, the appointment ran over and Li got to campus just after class had ended.

When James called the professor to explain why he had missed class and to plead for mercy, she laughed sympathetically. She had suffered plenty of car trouble when she was a student, she told him, so she’d let him go this time—but he had better start taking the bus from now on. As the professor hung up the phone, Li knocked on her office door. Li apologized for missing class that day, promised it wouldn’t happen again, and asked the professor to please give her another chance. Professor Smith shook her head solemnly and said, in a kind but sad voice, “Li, you really need to start planning better. I’m afraid I can’t excuse this absence because this has happened too many times already. I’m very sorry.” Li was unhappy with this response, but had expected it. She’d have to register for an extra class the next semester to make up for the credits she would lose after being dropped from this one.

Are these three cases of discrimination? Did the hostess intend to treat Alex differently from the White couple because of his race, the senior partner intend to treat Mary differently from Todd because of her gender, or the professor intend to treat Li differently from James because of her ethnicity? While the answer to the first question may very well be yes, the answers to the next three may be no. That is, it may be that in each of the three cases the decision maker treated the other person less favorably than he or she would have if that person were of a different race, gender, or ethnicity—but that in none of the three cases did the decision maker intend to do so. It may be, in other words, that each of them discriminated not by design, but by default.

What does it mean to discriminate by default? Discrimination by default can take multiple forms and operate through multiple mechanisms, much like other default processes with which we are familiar.

The word “default” itself encompasses a wide range of meanings; it can be used as a noun, a verb, an adjective, or an adverb; and it can be read as negative, neutral, or positive. More traditional sources, like my 1986 Webster’s Ninth New Collegiate Dictionary, define the word in mostly negative terms, equating default with failure: failure to pay a debt, failure to appear at a required legal proceeding, failure to compete in or complete an athletic contest.¹ In this sense of the word, when someone defaults bad things follow: a mortgage goes into foreclosure, a defendant must pay a legal judgment, a tennis player loses the match. Even in its negative sense, however, a default does not connote ill will or bad purpose, but rather a passive kind of failing: to default is to be remiss, negligent, forgetful, or simply incapable of meeting a requirement or challenge.

A default can be entirely neutral, as well. In this sense, a default is simply an automatic selection: what will be chosen in the absence of some action to prevent it. Mechanical devices like thermostats and appliances often have default settings to which they turn automatically if the user does not change them manually. Likewise, some defaults are viewed as unobjectionable in the legal world: default rules or contract terms, for example, are legal fallback settings that apply in the absence of a choice otherwise.

Defaults can carry positive connotations as well. Default rules and contract terms may be designated as such because long use of those standards has persuaded legal decision makers that they are the most fair or efficient among several alternatives. Default settings on appliances may be the ones that address the needs of most users or correspond with the optimal or safest modes of operation.

Those of us who use computers will recognize the full range of these meanings in the adoption of default settings on our computers. Our computers, and the software programs we use with them, have numerous default settings—far more than all but the most technologically savvy among us realize. Many of us accept almost all these settings, some because we have no preference otherwise, and some because we don’t realize we have a choice. In this situation, our failure to take action literally may be the result of our neglect or failure, but acceptance of the default seems for the most part to be neutral or unobjectionable. In some cases, the choice made by default may even seem desirable, to the extent that the default setting is viewed as the expected, the best, or the most popular setting.

In many ways, it seems right that to choose a setting by default (or, more precisely, to not choose a different setting) should be viewed as positive. It is often simply more efficient and pleasant to adopt the standard setting than to spend undue amounts of time and thought trying to identify the best among several alternatives. Having too many choices can paralyze people, make it harder for them to decide among alternatives, raise their expectations unrealistically high, and leave them less satisfied with the decisions they do make.² Especially for the technologically challenged computer user, it may be not just easier but also safer to go with the default settings—and indeed, some software installation programs recommend that less experienced or sophisticated users leave well enough alone and opt for the vendor’s preselected features. I, for one, am happy to comply. Further, and perhaps most obviously, the greater the number of people who use the default settings, the more compatible and consistent their work products will be, and the more efficiently and seamlessly the various parts of a team effort can be integrated into a whole.

But there are downsides to choices made by default, as well. First, the way in which defaults are established may not be ideal. Software engineers or web designers might strive to select defaults that are logical, promote ease of use, or reflect their sense of what most users would prefer. In some cases, however, the selection may be arbitrary or idiosyncratic, based more on the designer’s personal, possibly quirky preferences than on her sense of what would work best for or appeal to most users. Even if the designer hopes to make a selection that is optimal for users, she may base that judgment on no more than her intuitive sense, discussions with her colleagues, or the responses of a small test or focus group, rather than a more scientific or broad-ranging analysis. All these methods can be influenced by the preferences, backgrounds, and biases of those individuals, which may not match those of most, or even typical, users. In the legal world, similarly, default rules might be biased in favor of the interests or preferences of those who have developed them—usually those who already hold the most power in the legal system and society.³

The designation of a default might even be manipulative and harmful, as arguably is the case with web browsers that are delivered with a default setting to allow “cookies”—small text files that store information on a computer’s hard drive—to be written and read without the user’s awareness or consent. Private data-mining companies take advantage of this default setting to collect and analyze a vast array of personal information on Internet users, because they can use the cookies that are stored on a hard drive to track the user’s movements on the Internet. Through this surveillance, such companies can create detailed profiles of hundreds of millions of Internet users—a dream for marketing companies and other businesses that want to enhance their sales by learning more about consumers, but a nightmare to privacy advocates and those whose interests they represent.⁴

Furthermore, decisions made by default can themselves simply reflect bad decision making—or no decision making at all. People sometimes don’t realize that a particular default feature has been set and would not want it if they did. Because cookies can be placed invisibly and most people are unaware that their browsers have been set to allow this process, millions of Internet users unwittingly permit companies to collect personal, potentially sensitive information on them that they might prefer not to share.

The appeal of the default can be magnified or distorted by the user’s desire to avoid dealing with information to which she really should be attending. First, because the user must expend effort to choose something other than the default setting, to make another choice entails costs that have to be overcome. The more complicated or less familiar the situation, the more people tend to fall back with relief on the default, as a way of dodging a difficult decision or task. Although software and website designers striving for ease of use are exhorted to heed the command, “Don’t make me think!”⁵ the choice that requires the least thought is not always the best, and complicated situations might be the least appropriate ones in which to make a decision by default. Default cookie settings again provide an illustration. While these settings are, as described above, likely not desirable for many users, most will not bother to change them, either because they do not realize they should or because it is too difficult or confusing to do so.⁶

A user who tries to change from the default setting might even be discouraged from doing so by a chain of complications that change can set off. One writer has recounted, for example, the roadblocks he encountered when he tried to increase the privacy setting of his new web browser from the default setting of Medium to the next one up, Medium High: when he attempted to log onto the Internet after changing the privacy setting, he received a message warning him that the setting he had chosen might interfere with the functioning of some features of the browser and “recommend[ing] that [his] privacy setting be configured to the default.”⁷

Whether it is a good or bad choice, the default setting tends to become entrenched as the standard setting, thereby perpetuating and magnifying its influence.⁸ That is, the default can attain dominance through the accumulation of users and the passage of time. A simple but recognizable example of the power of the default to set the standard is the rise of the Times New Roman font. This font style has become de rigueur for a wide range of documents, both real and virtual, but this was not always the case. For many years, the Courier font was standard, especially for legal and other official papers. Courier itself came into prominence because it was used in the “golf ball” typing head technology for IBM’s electric typewriters. Over the years, however, as computers have overtaken typewriters as our primary means of producing documents, Times New Roman has supplanted Courier. The changing of the standard has been due in no small part to the fact that Times New Roman is the default font for widely used word processing programs such as Microsoft Word and Corel WordPerfect. The supremacy of Times New Roman was confirmed when, in February 2004, the State Department declared that Courier was “obsolete” and henceforth banned for use in most official documents. Instead, all official correspondence was from then on to be set in the “crisper, cleaner, more modern” Times New Roman.⁹

Discrimination by Default, Discrimination as Default

Modern-day discrimination resembles decision making by default to a remarkable degree and in all its senses: the neglect or failure that is implied in the traditional use of the word, as well as the automaticity, passivity, and potential suboptimality of “selecting” a computer setting by default. And, as often happens when most of us accept the default setting on a computer, discrimination by default creates a situation in which that discrimination becomes the default: the expected, the accepted, the standard. Once it becomes the standard, we take it for granted and fail to recognize the extent to which it influences how we operate in the world.

First, like a default in the traditional sense, we often discriminate through failure or neglect, reaching a bad result not through ill will or evil purpose, but because we are unaware of our failing or are incapable of doing differently. Social psychologists have shown, for example, that most people are afflicted with unconscious cognitive and motivational biases that lead us reflexively to categorize, perceive, interpret the behavior of, remember, and interact with people of different groups differently. These unconscious biases, in turn, can lead us to treat people differently based on race and other ...