(1) From Hostility to Unconscious Discrimination : While the first and most obvious meaning of discrimination emphasises hostility or prejudice, it is necessary to use a wider definition adopted because, first, the evidence shows that adverse treatment, or adverse effect, frequently occurs in the absence of prejudice or hostility and, secondly, it is difficult to define or prove prejudice or hostility. In the first extract, Sunstein discusses prejudice, whilst in the second,

doi:10.4324/9781843145585-20

Chapter

(1) From Hostility to Unconscious Discrimination

Chapter

ABSTRACT

Sunstein, C, ‘Three civil rights fallacies’ (1991) 79 California L Rev 751, pp 752-53:

For present purposes, perhaps we can understand ‘prejudice’ to encompass three sorts of mistakes. The first consists of a belief that members of a group have certain characteristics when in fact they do not. Here the relevant belief has no basis in reality and its irrationality is especially conspicuous. The second consists of a belief that many or most members of a group have certain characteristics when in fact only a few of them do. Here the error is an extremely over-broad generalisation. The third mistake consists in reliance on fairly accurate group-based generalisations when more accurate (and not especially costly) classifying devices are available. Here the members of a group actually have an undesirable characteristic in fairly large numbers ... but it is possible and more rational to use other, more direct devices to filter out that characteristic. The failure to use those more direct devices reflects a kind of prejudice ...