Jottings By An Employer's Lawyer

Friday, September 26, 2014

Implicit Bias: A Brave New World

Implicit bias as a concept has been bubbling around the world of employment discrimination for a few years now. Although the fact that Google is seriously studying the issue as it applies to its own workforce may not mean that the concept is now main stream, I do think it means it is an issue that we will be hearing more about.

The NYT article earlier this week, Exposing Hidden Bias at Google, gives a pretty good overview of how Google is approaching the issue. And also notes that they first started looking at it way ahead of the curve in 2012.

Although I have done no in depth research, it seems that the case for implicit bias as a "fact" has been made.  But what it means for employment discrimination law remains an open question. For example, see Implicit Bias Evidence and Employment Law: A Voyage Into the Unknown.

One obvious problem is that most employment discrimination cases are brought under a disparate treatment theory, which by definition involves intentional discrimination. As explained in a training class at Google:
The lecture begins with a dismal fact: Everyone is a little bit racist or sexist. If you think you’re immune, take the Implicit Association Test, which empirically measures people’s biases. Dr. Welle goes on to explain that some of the most damaging bias is unconscious; people do the worst stuff without meaning to, or even recognizing that they’re being influenced by their preferences.
Hardly a definition of intentional discrimination.

Of course, there is also a theory of discrimination, disparate impact, which can be used to challenge unintentional discrimination. It is tied to discriminatory results of a facially neutral business practice. Whether it can be wielded to really address implicit bias remains to be seen.

How implicit bias plays out in the world of employment litigation is an interesting legal issue.

Unfortunately for employers, interesting legal issues are often much more "interesting" for the lawyers than for their clients.

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