In many industries, women are less likely than men to be hired, and research suggests that this is due to subconscious gender bias rather than meritorious difference. To combat this bias, some orchestras use gender-blind auditions to hire their musicians. Orchestral hopefuls sit behind a screen to play their pieces, and directors listen to determine whom they want to hire. Some orchestras require applicants to remove their shoes before walking onstage, as even the perceived sound of high heels can affect a director’s decision. Before instituting gender-blind auditions, the top five American orchestras had fewer than five percent women players. But once such procedures were put in place, the percentage of women musicians jumped to twenty-five to thirty percent. American law does not adequately protect against employment discrimination. In discrimination cases, plaintiffs face a very high burden, making claims difficult to win. This is especially true when it comes to subconscious bias. In this Note, I argue that federal legislation is necessary to remedy the effects of subconscious bias by mandating that employers remove all sex and gender markers from job application materials in the preinterview stage of hiring. I will draft a model statute aiming to remove one aspect of gender bias in the hiring process as a step toward gender equality. In Part I, I explain how gender is a social construct by examining sociological data and evaluating neurological studies that claim to establish the existence of inherent behavioral differences between the sexes. Using this information, I argue that subconscious gender bias is problematic in the context of workplace equality. In Part II, I evaluate the current state of anti-discrimination law, showing how subconscious bias claims are nearly impossible to win. Then, in Part III, I propose and draft federal legislation that would require employers to remove gender markers from preinterview application materials in an attempt to stymie subconscious gender bias.
Christy Krawietz, An Overture to Equality: Preventing Subconscious Sex and Gender Biases from Influencing Hiring Decisions, 39 SEATTLE U. L. REV. 1051 (2016).