How Bias Can Weaken Legislation
When it comes to law, ignorance isn’t bliss.
Prejudicial policy continues to find its way into law despite the noble goals of the judicial system and the efforts of well-meaning lawmakers.
Two Georgia State Law professors have done important work in understanding how and why this happens. Their works illustrate, in one case, how bias can bleed through popular culture onto books of law and, in another, how biased preconceptions can hollow out the insides of well-intentioned laws.
Seeing, in both bodies of work, examples of how bias slips through the security systems of justice can sensitize those in the legal profession to its possibility … and support prevention.
Professor Jonathan Todres’ ongoing work examines how culturally shaped bias has led to faulty law and policy responses to human trafficking.
“When we have a popular understanding of any issue, and it doesn’t reflect reality, or only a portion of reality, we’re going to advocate for policy and new law based on that misunderstanding,” Todres said. “We have an obligation to go beyond popular portrayals and use evidence-based research to develop our laws.”
Todres explored in a 2015 paper for Cornell Law Review Online (“Human Trafficking and Film: How Popular Portrayals Influence Law and Public Perception”) how popular cultural vehicles reproduce biased understandings. Movies such as Taken and The Whistleblower can create powerful but erroneous notions and emotions that shape opinion and get incorporated into law.
Misconceptions about trafficking have led to a broadside of legal measures that often miss the target. “In the historical development of international legal measures to combat human trafficking, two key concepts emerge,” Todres said.
“First, from the outset, in the early 1900s, the aim was not to guard against the trafficking of all persons, but only white women and girls. While that has long since been remedied formally in international law on human trafficking, its legacy has not.
“Second, the historical development of the law evolved in ways that fundamentally linked trafficking with prostitution. Though numerous individuals are trafficked for prostitution, this linkage led lawmakers to overlook the extent to which persons are trafficked for other forms of exploitation.”
We find forced human labor in factories, fishing fleets, military service, domestic work and many other services. The popular conception of trafficking — women in forced sexual situations — is sensational and galvanizing, but criminals make billions of dollars annually on other forms of exploitation largely out of public view. So far, because of the prevalence of the sex-industry stereotype, lawmakers haven’t focused as aggressively on those other forms of trafficking.
Trafficking can be abetted by social views of “otherness,” as Todres terms it — the idea that marginalized populations are devalued and, in many cases, considered less than human.
“Overcoming discrimination and otherness is a difficult, long-term project. That is all the more reason to start immediately. Traffickers have huge incentives — it is a multi-billion-dollar enterprise. It won’t go away unless we take on the long-term challenges while we continue to work on short-term goals too,” he said.
How bias disabled the ADA
A second glaring example of the ways bias can subvert the best intentions of lawmakers has been explored by Wendy Hensel, associate dean for research and faculty development and professor of law. She has written extensively about how the Americans with Disabilities Act (ada) lost effectiveness after its passage in 1990 due to “extensive judicial resistance to the legislation.”
Lawmakers considered the ada radical legislation at the time, though disability advocates hailed it as a substantial step towards ending discrimination against millions of Americans who experience physical or mental impairments.
The law was one thing. Its application, another.
Judges, using an exacting definition of disability, severely limited the law’s protection against discrimination. Only individuals with nearly incapacitating impairments were found to have a disability. People who commonly are understood to have disabilities — those with mental retardation, diabetes, epilepsy, missing limbs and cancer — were often denied the law’s protection because judges did not find them to be sufficiently impaired. Many lawyers stopped taking disability cases because they were so hard to win.
“In effect, legal bias about what disability looks like resulted in many not receiving the civil rights protections they needed,” Hensel said. Fortunately, better law moved in. In 2008, President George W. Bush signed the Americans with Disabilities Act Amendments Act (adaaa) into law, “reinstating a broad scope of protection,” Hensel said, to millions of people.
“The adaaa rejected the narrow approach of the courts to eligibility and restored Congress’ original intent to provide broad legal protection from disability discrimination in society,” she said.
“Since the act was modified in 2009, more people have been able to establish a disability in court and be protected by law. But the ADA’s history serves as a good example of how bias can erode the effectiveness of a beneficial law.”
Hensel points to the often “significant stigma against mental illness” that remains in the law and in our culture.
“Unfortunately,” she says, “laws are not effective if society doesn’t change too.”