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Implicit Bias in Employment Law: Theories of Discrimination

Research Guide


Title VII of the Civil Rights Act of 1964 in relevant part prohibits discrimination on the basis of race, color, religion, sex, or national origin. Because the text of the statute does not distinguish between conscious and unconscious discrimination, lawyers have long theorized that implicit bias on the part of a covered employer could, theoretically, give rise to a disparate act claim actionable under Title VII. Despite this, a series of judicial decisions have made it extremely hard for evidence of implicit bias to form the basis of a Title VII claim. This section will lay out the basics of a disparate act claim and the relevant court decisions invoking evidence of implicit bias.

Disparate Treatment: A Dead End

There are two theories of employment discrimination envisioned under Title VII, referred to respectively as Disparate Treatment theory and Disparate Impact theory. 

Disparate Treatment means that an employer is applying a rule that, if applied neutrally, discriminates on the basis of a protected characteristic. The key issue in a Disparate Treatment  is whether the employer's action was motivated by discriminatory intent. Because of the intent requirement, the presence of implicit bias (a necessarily unconscious, unintentional phenomenon) in an employer is irrelevant to this theory of discrimination.

Disparate Impact: Greener Pastures for Implicit Bias Litigation?

Disparate impact, unlike disparate treatment, does not require a finding of intentional discrimination in order for a claim to succeed. Under a disparate impact claim, a violation of Title VII can be premised on any facially neutral employment practice or decision that has a disproportionately adverse impact on a class or individual on the basis of a protected characteristic.

As has been established, implicit bias is an established psychological phenomenon that contributes to decision making that prejudices Africa-Americans, women, and other out-group minorities. In theory, evidence of implicit bias in an employer should be highly relevant to the determination of whether a facially neutral hiring, firing, or promotion procedure is in fact discriminatory in operation or effect.

Pattern and Practice Discrimination

Pattern or practice discrimination is a less-used theory of discrimination that exists where a company repeatedly and regularly engages in acts prohibited by Title VII. In order for the plaintiff (usually the government) to succeed in a pattern or practice suit, it must prove by a preponderance of the evidence that discriminatory actions were the standard operating procedure at the firm.

The application of implicit bias evidence in these types of cases is obvious. If evidence of widespread implicit bias was of probative value in establishing a pattern of discrimination in a workplace, it would make it that much easier for plaintiffs to succeed in these types of lawsuits.