Library Guides: Implicit Bias in Employment Law: The Problem With Implicit Bias in the Courtroom

Limited Success

Thomas v. Eastman Kodak Co. (1999)
This First Circuit Case goes as far as any court has gone to advance the use of implicit bias under a disparate treatment theory. In response to an argument by Plaintiff that her employer had fallen prey to cognitive bias in its decision to lay her off, it said: "Stereotypes or cognitive biases based on race are as incompatible with Title VII's mandate as stereotypes based on age or sex; here too, “the entire spectrum of disparate treatment” is prohibited."
Watson v. Fort Worth Bank & Trust (1988)
In a small victory for the use of implicit bias under a disparate impact theory, the Supreme Court in 1988 said that implicit bias could theoretically make some subjective employment practices illegal under Title VII. In its words: "Even if it is assumed that discrimination by individual supervisors can be adequately policed through disparate treatment analysis, that analysis would not solve the problem created by subconscious stereotypes and prejudices that lead to conduct prohibited by Title VII."
Rowe v. General Motors Corp. (1972)
The idea that subjective employment tests might lead to disparate impact liability is not new. In 1972, the Fifth Circuit wisely noted that "promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks much of which can be covertly concealed and, for that matter, not really known to management."

Here, the court is not saying that implicit bias will cause racial discrimination but instead that employers will merely hide their racism behind the veneer of subjective determination. Nonetheless, the point is well taken that implicit or explicit bias can be found behind many "subjective" employer practices. If employers know that implicit bias exists, and they nonetheless utilize subjective employment practices as a policy, a theory could be advanced that this is a Title VII violation under a disparate impact theory.
EEOC Guidance
In informal guidance, the EEOC has noted that intentional discrimination includes "not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups."

Despite this, the government has been slow to advance cases based on evidence of unconscious stereotyping or bias.

Rejections of Implicit Bias Out of Hand

Some judicial rejections of implicit bias have come without reference to the probative value of its evidence. These two cases are representative of what most rejections of implicit bias look like.

Jackson v. Harvard University (1989)
The District Court in this case summarily rejected implicit bias conjecture in a disparate treatment case: "Disparate treatment analysis is concerned with intentional discrimination, not subcon- scious attitudes.”
Price Waterhouse v. Hopkins (1989)
Although its major holding has since been superseded by statute, different parts of Price Waterhouse v. Hopkins remains influential in the employment field. One part of the opinion addresses the specter of unconscious bias as a motivator of employment decisions:

"In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman."

Here's a question: When the Court wrote this, did a "truthful response" refer to the conscious reasons the employer had for their decision (excluding implicit bias), or simply all of the reasons the employer had for their decision (probably inclusive of implicit bias)?

Two Opposing Views on Implicit Bias in the Courtroom

Unconscious Bias Theory in Employment Discrimination Litigation
This article explores methods of incorporating implicit bias in the courtroom, on the premise that implicit bias evidence should be presented more by litigators in an attempt to develop judicial discourse on the subject.
Implicit Bias and Employment Law: A Voyage into the Unknown
This article criticizes the inclusion of implicit bias in the courtroom and explains why implicit bias is underdeveloped as a theory, problematic as evidence, and impossible to effectively incorporate into Title VII jurisprudence.

The Problem With Implicit Bias

The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity
This work has been perhaps the most influential in sketching the basic problem of implicit bias in the law and why it matters so much in a world where most biases are implicit. It points out that the way we think of discrimination as a legal concept is directly counterproductive to efforts to ameliorate implicit bias. The article calls for a cognitive science approach to Title VII, a call that has gone unheeded by policymakers but has been taken up by most other academics.
A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias
This article functions as an excellent overview of the problems encountered when mashing together implicit bias and our existing Title VII theories. It posits some innovative ideas for how to meld together the science and the law.
The Law of Implicit Bias
This article takes the failure of the current approach for granted and proposes ways that new (or heavily amended) laws could address the problem of implicit bias without imposing onerous costs or crippling uncertainty on employers.
Saving Disparate Impact
This article not only takes for granted the failure of Title VII to address implicit bias but goes farther by arguing that the approach judges currently use to identify discrimination imperils the whole mission of our civil rights scheme in the employment context.
Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory
This article conceptualizes of discrimination as part of a more general “workplace dynamic,” and draws attention not just to the legal implications of implicit bias but the fact that it is often highly corrosive to an effective workplace. It proposes a more wholesome disparate treatment test that incorporates the unconscious judgments of those making employment decisions.
Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment
This article basically pleads with judges to incorporate a scientific understanding of implicit bias in their jurisprudence, invoking the specter of legal realism in its arguments.

Rejections of Implicit Bias Evidence

Cognitive psychology is a science, which means the evidence it produces is subject to particular evidentiary rules, most notable the Daubert standard. Two recent cases have cast doubt on whether evidence of implicit bias is admissible at all. This is important because unless evidence of implicit bias can be presented in court, it matters not if a theory can be fit to accommodate it.

Wal-Mart Stores, Inc. v. Dukes (2011)
In this class action gender discrimination lawsuit, a psychologist presented state of the art evidence of implicit bias against women in subjective employment decision. The Supreme Court rejected it, saying that it was "worlds away from ‘significant proof’ that the company "operated under a general policy of discrimination."
Pippen v. State (2014)
In a racial discrimination before the Supreme Court of Iowa, evidence of implicit bias was presented under both Title VII and a state civil rights statute. The Supreme Court affirmed the decision of the lower court, which stated that "‘implicit bias does not mean prejudice, but merely reflects attitudes. More pointedly, [no expert opinion evidence demonstrated] that the bottom line figures were caused by implicit racial bias."
’Statistical Dueling’ With Unconventional Weapons: What Courts Should Know About Experts In Employment Discrimination Class Actions
This article is a scholarly approach to the same issues that the courts have grappled with in the above cases. It proposes different ways that judges can think about the issue of statistical validity in a courtroom.

Book Corner

For a more nuanced understanding of the issue of implementation, consider consulting the books below.

Implicit Bias in Employment Law: The Problem With Implicit Bias in the Courtroom

The Big Question: What Theory?