Tensions with Disparate-Treatment Theory
A disparate-treatment claim requires proof that an employer intentionally discriminated against an employee because of the employee’s protected characteristic. In contrast, implicit bias, as its name suggests, is the antitheses of intent; it is a function of one’s subconscious biases. As one federal judge in Massachusetts explained: “Disparate treatment analysis is concerned with intentional discrimination. . . . [S]ubconscious attitudes . . . are precisely the sort that disparate treatment analysis cannot and was never designed to police.” Jackson v. Harvard Univ., 721 F. Supp. 1397, 1433 (D. Mass. 1989), aff’d, 900 F.2d 464 (1st Cir. 1990).
The Equal Employment Opportunity Commission, however, has taken the position that intentional discrimination includes “unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups,” and targeted implicit bias in its five-year E-RACE (Eradicating Racism and Colorism from Employment) initiative for years 2008–2013.
In practice, the line between intentional discrimination and subconscious attitudes is not always clear. There are certainly instances where employment decisions influenced by implicit bias will amount to violations of Title VII. For example, where a decision-maker’s implicit bias leads to the selection of a male over a female for a promotion, the female may prove that she was a victim of gender discrimination solely by proving that she was clearly more qualified than the male selected for a promotion. But, in this example, the evidence of discrimination stems from the comparative qualifications of the employees, not social-science research about implicit bias.
Moreover, since the U.S. Supreme Court’s seminal decision in Price Waterhouse v. Hopkins, it has long been accepted that adverse employment decisions based on gender stereotyping violate Title VII. 490 U.S. 228, 258 (1989). In Hopkins, the Court was persuaded that the plaintiff did not make partner because she did not conform to the decision-makers’ stereotypes about how a woman should behave. Among other comments reflecting sex stereotyping, the plaintiff was advised that, to improve her chances at partnership the following year, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” But the stereotyping that existed in Hopkins was far from subtle and a layperson would not need to understand implicit-bias theory to conclude that the plaintiff was treated differently because of her gender.
Even if a plaintiff persuades a court that “intent” includes subconscious bias, the plaintiff must overcome the hurdle of proving causation. Expert testimony on implicit bias might show that, in laboratory conditions, many members of the general public hold some sort of implicit bias. But how does that prove that a specific decision-maker harbored an implicit bias and made a decision because of that bias? Many courts have rejected expert testimony on implicit bias because the statistics from the general population had only a speculative application to the defendant decision-maker and, therefore, did not “fit” the case for purposes of Federal Rule of Evidence 702.
Other courts have excluded expert testimony on implicit bias because the testimony is more prejudicial than probative. Plaintiffs’ experts on implicit bias believe that unconscious stereotyping exists in all facets of life. With this baseline, jurors may presume that the employee was a victim of discrimination unless the employer can prove otherwise, which shifts the burden of proof in a discrimination case from the employee to the employer.
Existing implicit-bias research also offers plaintiffs little assistance in proving causation because some of the research suggests that implicit attitudes do not necessarily cause discriminatory actions. Recently, researchers from the University of Virginia, University of Wisconsin, and Harvard University examined 499 studies over 20 years involving over 80,000 participants that used various tests for measuring implicit bias, including the well-known Implicit Association Test. The study revealed that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. Forscher, Lai, Axt, Ebersole, Herman, Devine & Nosek, A Meta-Analysis of Change in Implicit Bias (under review) (2016).
Despite these many obstacles, some plaintiffs in discrimination cases have successfully survived challenges to expert testimony about implicit bias. Interestingly, plaintiffs seem to increase the chances of surviving a Daubert challenge when they strategically limit the scope of the expert’s testimony to a general explanation of implicit-bias research and avoid any expert opinion about whether implicit bias played a part in the employment decision at issue. While one could interpret this limited testimony to have little utility for a jury (and therefore fall short of Rule 702’s admissibility standards), some courts have viewed this restraint as a positive.
Tensions with Disparate-Impact Claims
Disparate-impact claims involve facially neutral employment practices that have a disproportionate impact on a protected class. Unlike disparate-treatment claims, disparate-impact claims focus on the outcomes of decisions rather than the intent of the decision-maker. Justice Kennedy, in a housing-discrimination case, observed that disparate-impact cases are designed to “counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507, 2511 (2015). At first blush, implicit-bias theory seems compatible with the disparate-impact doctrine in that they both address discriminatory outcomes even though there is no perceptible evidence of discriminatory intent.
But upon closer inspection, implicit-bias theory does not fit neatly into the disparate-impact framework. Whereas disparate-impact claims focus on the discriminatory impact of a facially neutral employment practice on a group of employees, implicit-bias theory explains how an individual decision-maker’s unconscious bias influenced his or her treatment of an individual employee. In most cases involving alleged implicit bias, plaintiffs will struggle to identify the neutral employment practice required to pursue a disparate-impact claim.
Some plaintiffs have argued that implicit-bias research shows that when an employer has a policy of affording supervisors subjective discretion to make employment decisions, the supervisors’ stereotypes are likely to influence personnel decisions. This was the basic theory in Wal-Mart Stores, Inc. v. Dukes, where the plaintiffs argued that the significant discretion afforded to managers made Wal-Mart’s pay and promotion decisions susceptible to gender discrimination. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 344–45 (2011). The Supreme Court acknowledged that a practice of delegating decision-making to lower-level supervisors can form the basis of a disparate-impact claim. But since the plaintiffs’ experts could not state whether more than a tiny fraction of Wal-Mart’s employment decisions were based on stereotypical thinking, the Supreme Court described the plaintiffs’ statistical evidence of bias among the general public as being “worlds away” from the proof required to establish that Wal-Mart operated under a general policy of discrimination.
Disparate-impact claims relying on implicit-bias theory have usually received a similar response from the courts. Implicit-bias research may explain why there might be a disparate impact when employers afford too much discretion to lower-level supervisors. And an expert statistician may opine that, for example, women receive disproportionately fewer promotions than men. But this combination of expert testimony still falls short of establishing that the challenged practice caused the statistical disparity.
This was the conclusion reached in Pippen v. State of Iowa, where a class of African American employees alleged that the State of Iowa’s hiring and promotion practices caused a disparate impact based on race. Pippen v. State, 854 N.W.2d 1, 5 (Iowa 2014). The plaintiffs’ social-science expert testified that, based on studies showing an implicit bias among the general population, the evidence was “strongly presumptive” that Iowa managers’ hiring and promotion decisions were infected with implicit bias. The plaintiffs’ statistician expert testified that the state hired and promoted a disproportionately low number of African Americans. Yet the Iowa Supreme Court disregarded the experts’ testimony because (1) the social-science expert’s opinion was not based on studies specific to the Iowa decision-makers, and (2) the statistician could not tie the statistical disparity to any particular employment practice.
More fundamentally, some courts have questioned whether implicit-bias theory is even relevant to deciding a disparate-impact claim. Implicit-bias theory explains how an individual’s subconscious bias results in discriminatory decisions, but disparate-impact claims do not inquire into the employer’s state of mind or motives. Accordingly, bias—whether conscious or unconscious—is immaterial to a disparate-impact claim. The Third Circuit recently affirmed a district court’s decision to exclude expert testimony on implicit bias for this very reason.
Takeaways
Implicit bias is a fascinating social-science topic, but one that may have limited application, at least for the time being, to employment-discrimination law. Plaintiffs who wish to incorporate implicit-bias theory into their cases certainly face significant hurdles. But employers should expect that, as the research develops, so too will plaintiffs’ strategies for using the theory in their discrimination cases.
Even as plaintiffs grapple with the challenges of using social-psychology research in discrimination cases, employers should continue to take steps to combat implicit bias in the workplace. Some of the same research that emphasizes the innate nature of implicit bias finds that once people are made aware of potential biases, they can consciously intervene to prevent those biases from impacting their decisions. A workplace culture of diversity and inclusiveness may also serve to reduce implicit bias. A University of Virginia study showed that implicit bias against gay and lesbian people dropped 13 percent between 2006 and 2013. Westgate, Riskind, & Nosek, Implicit Preferences for Straight People over Lesbian Women and Gay Men Weakened from 2006 to 2013, Collabra, 1(1), Art. 1 (2015).Of course, during this same period, the nation experienced swift cultural changes in attitudes toward lesbian and gay people. The study suggests that, while some biases may be unconscious, they are not necessarily permanent.
Jeff Barnes is a partner and Ehsan Tabesh is an associate with Fisher & Phillips LLP in Houston, Texas.