Implicit bias as social-framework evidence in employment discrimination.

• Author: Jones, Annika L.
• Position: COMMENT

The role of implicit bias as evidence in employment discrimination claims continues to evolve, as does research attempting to explain and quantify the concept of implicit bias. In Walmart Stores, Inc. v. Dukes, the Supreme Court curbed plaintiffs' use of implicit bias as evidence in support of the commonality requirement of Rule 23. Post-Dukes, plaintiffs have looked for creative ways to leverage scientific developments in implicit bias within the legal framework of employment discrimination law.

The most promising answer to the "Dukes problem" looks to implicit bias as substantive, rather than procedural, evidence. By repackaging implicit bias as social-framework evidence, plaintiffs can persuasively contextualize for factfinders the ways in which differential treatment plays out in a workplace, even in the absence of overtly discriminatory attitudes or stereotypes. Whether courts will adapt to this use of implicit bias is increasingly important, as modern workplace discrimination is becoming more subtle and often is the result of unconscious biases.

INTRODUCTION 1222 I. THE DEVELOPMENT OF EMPLOYMENT DISCRIMINATION LAWS 1223 A. Moving to Disparate Impact Claims 1223 B. Disparate Impact Claims and Second-Generation 1225 Discrimination II. IMPLICIT BIAS AS SOCIAL-FRAMEWORK EVIDENCE 1227 A. Wal-Mart Stores, Inc. v. Dukes 1227 B. Social-Framework Evidence 1230 C. The Two Strands of Implicit-Bias Testimony 1233 1. Not Certain Enough 1235 2. Too Certain 1237 III. FINDING A WAY FOR IMPLICIT-BIAS TESTIMONY 1238 A. An Impossible Standard: Jones and Karlo 1238 B. Just Right: The Path to Admissibility 1241 CONCLUSION 1242 INTRODUCTION

The "discovery" of implicit bias (1) has influenced conversations around race, gender, age, socioeconomic status, and sexual orientation. The role of unconscious mental processes in nondeliberate discriminatory behaviors has become a hot topic in mainstream culture and both legal and nonlegal academia. Scientists have explored the implications of implicit bias in a diverse range of contexts--from the criminal justice system to video games. (2) Moderators questioned candidates about implicit bias during a 2016 presidential debate, (3) and researchers have assessed implicit bias across voter demographics. (4) Courts, to varying degrees, have recognized implicit bias and its impact on human behavior inside and outside the courtroom. (5) The legal relevance of implicit bias is a particularly charged issue in the employment context. (6) Studies of decisionmaking in employment contexts have been a main driver of the implicit-bias dialogue. (7) And some claim evidence of pervasive implicit bias in the workplace justifies "reforming the doctrinal contours and standards of employment discrimination claims." (8) In this way, conversations around implicit bias both affect and are affected by employment discrimination law.

Within this context, this Comment considers how implicit bias might be used as "social framework" evidence to substantiate an employee's disparate impact discrimination claim. Part I summarizes the history and development of employment discrimination law. First, it tracks the shift from first-generation to second-generation employment discrimination--and evaluates how implicit bias fits within this shift. Second, it considers the legal landscape after the landmark Supreme Court case Wal-Mart v. Dukes. Part II introduces social-framework evidence. This Part catalogs plaintiffs' successful and unsuccessful invocations of implicit bias as social-framework evidence to contextualize second-generation employment discrimination. Finally, Part III proposes how expert testimony on implicit bias can be admissible as social-framework evidence and responds to likely objections.

1. THE DEVELOPMENT OF EMPLOYMENT DISCRIMINATION LAWS

   1. Moving to Disparate Impact Claims

      Modern employment discrimination law has its origins in the Civil Rights Act of 1964, which banned discrimination in public accommodations and federally funded programs. (9) Title VII of this Act "answered the call for equal opportunity in the nation's workplaces" (10) by making it illegal for employers to discriminate on the basis of race, color, religion, national origin, and sex. (11) While scholars argue the goals and effects of Title VII, most agree that its primary purpose was to "stamp out" facially discriminatory policies (12) and "smoke out" employers' discriminatory animus against protected classes. (13) Regarding the latter purpose, the Supreme Court eventually expounded the McDonnell Douglas burden-shifting framework, which allows plaintiffs to prove claims of hidden (but conscious) bias if the only legitimate explanation for an adverse employment decision is discrimination on the basis of a protected characteristic. (14)

      As early as 1966, the Equal Employment Opportunity Commission (EEOC) took the position that Title VII prohibited not only intentional discrimination, but also neutral employment practices that had disproportionate adverse effects on protected groups. (15) In 1971, the Supreme Court agreed with that position in Griggs v. Power Dukes Co. (16) Griggs expanded the reach of Title VII by holding that "good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups." (17) "Disparate impact" theory opened the doors to discrimination claims that existed independent from any proof of animus toward the protected class. That class of cases was deemed "a lingering form of the problem that Title VII was enacted to combat." (18)

      Soon after Griggs, Congress revisited Title VII and tacitly ratified disparate impact as grounds for employer liability. (19) Nearly twenty years later, in 1991, Congress provided an affirmative statutory basis for disparate impact liability. (20) Since passage of the 1991 amendment, plaintiffs have established a prima facie disparate impact claim by demonstrating that an employer uses a "particular employment practice that causes a disparate impact" on a protected class. (21) Employers can defend with proof that the employment practice is "job related for the position in question and consistent with business necessity." (22) If an employer demonstrates business necessity, a plaintiff can still prevail by showing that the employer refuses to adopt an alternative employment practice that does not have the same adverse impact. (23)

   2. Disparate Impact Claims and Second-Generation Discrimination

      The development of disparate impact liability coincided with the shift from overt, hostile workplace discrimination--"first generation" discrimination--to patterns and policies that operate more subtly to exclude protected classes--"second generation" discrimination. (24) Though the vast majority of employers today would not openly discriminate in the way of years gone by (such as "Irish need not apply," or "This is no job for a woman"), workplace discrimination persists. One author defined modern discrimination as follows:

      "Second generation" claims involve social practices and patterns of interaction among groups within the workplace that, over time, exclude nondominant groups. Exclusion is frequently difficult to trace directly to intentional, discrete actions of particular actors, and may sometimes be visible only in the aggregate. Structures of decisionmaking, opportunity, and power fail to surface these patterns of exclusion, and themselves produce differential access and opportunity. (25) Advocates for protected groups emphasize that while second-generation discrimination may look and sound less dramatic, its impact is not: "Although in many parts of the country race discrimination has become increasingly subtle over time, the effects of discrimination on victims and society remain as powerful as ever." (26)

      Disparate impact liability opened the door for second-generation discrimination claims. If a plaintiff-employee cannot demonstrate discriminatory animus because the bias is either well-hidden or unconscious, claims against employers are cognizable. (27) Justice Ginsburg recognized the importance of this change several years after the Civil Rights Act of 1991: "Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become the country's law and practice." (28) As biases have moved beneath the surface, the continuing viability of disparate impact liability depends upon plaintiffs' ability to identify and prove implicit bias.

      Whether the effects of unconscious discriminatory attitudes should provide a basis for employer liability is both a legal and normative question. (29) The existence of disparate impact liability seemingly gives an affirmative answer to the legal question, yet courts' resistance to implicit-bias evidence suggests an unwillingness to recognize unconscious bias as a sufficient basis for liability. Some object, claiming that implicit bias does not exist. (30) Yet scientific evidence largely refutes this claim. Social psychologists have created one well-known instrument for quantifying implicit bias called the Implicit Association Test (IAT). (31) The IAT does not ask participants to state any beliefs or opinions. (32) Instead, it purports to measure implicit bias by subjecting participants to rapid categorization tasks--and then computes scores based on their performance that are "interpreted as reflecting an implicit attitude." (33) Social scientists and legal scholars have exhaustively analyzed the validity and reliability of the IAT. (34) By now, even courts resistant to implicit-bias expert testimony tend to acknowledge implicit bias may exist in some fashion. (35)

      A second objection is the claim that implicit bias may exist in the workplace, but it should not introduce liability. In other words, the argument is that...