The Coming Battle Over 'Implicit Bias' in Employment Discrimination Cases

LOS ANGELES & SAN FRANCISCO

www.dailyjournal.com

TUESDAY, DECEMBER 18, 2018

PERSPECTIVE The coming battle over ‘implicit bias’ in employment discrimination cases By Anthony J. Oncidi definitely does not belong — i.e., The Samaha court agreed (2011), the U.S. Supreme Court those requiring proof that illegal with the plaintiff that Dr. Green- expressly rejected the “social laintiffs in most employ- discrimination was a substantial wald’s testimony about implicit framework analysis” that was put ment discrimination cases motivating factor that resulted in bias was relevant to the proof of forth in the form of expert testi- Passert and seek to prove the challenged employment de- intentional discrimination and mony from a sociologist who tes- “disparate treatment” by the cision. See, e.g., Harris v. City could be “helpful to the jury” in tified that Wal-Mart had a “strong employer. Disparate treatment of Santa Monica, 56 Cal. 4th understanding how implicit bias corporate culture” that made it claims require proof of discrim- 203, 232 (2013) (“Requiring the functions in the employment set- vulnerable to gender bias. The inatory intent on the part of the plaintiff to show that discrimina- ting. The court further held that Court determined that the expert’s employer or management. How- tion was a substantial motivating it was satisfied that Dr. Green- testimony did nothing to advance ever, because direct evidence of factor, rather than simply a moti- wald’s opinions were sufficiently plaintiffs’ case: “Whether 0.5 per- discriminatory intent is rare, en- vating factor, more effectively en- “grounded in the methods and cent or 95 percent of the employ- terprising plaintiffs’ lawyers are sures that liability will not be im- procedures of science” (quoting ment decisions at Wal-Mart might increasingly trying to fill the gap posed based on evidence of mere the Daubert standard for admit- be determined by stereotyped by relying upon evidence of pur- thoughts or passing statements ting expert testimony). thinking is the essential question ported “implicit bias” to create an unrelated to the disputed employ- In another recent case, a fed- on which respondents’ theory of inference of discriminatory intent. ment decision”). eral district court allowed expert commonality depends. If [the ex- In 1998, Anthony Greenwald, Purported evidence of implicit testimony from an assistant law pert] admittedly has no answer Ph.D., a social psychologist and bias is precisely what the Cal- professor with a Ph.D. in social to that question, we can safely professor of psychology at the ifornia Supreme Court warned psychology concerning implicit disregard what he has to say.” Id. University of Washington, and his against and sought to exclude in bias in a race-discrimination case. Expert testimony regarding im- colleagues created the Implicit Harris. In fact, such “evidence” is Martin v. F.E. Moran, Inc., 2017 plicit bias is vulnerable to similar Association Test, which is readily even more ephemeral than “mere WL 1105388 (N.D. Ill. 2017). challenges. See, e.g., Pippen v. available on the internet (https:// thoughts” in that the Implicit As- The judge admitted the expert State of Iowa, 2012 WL 1388902 www. tolerance.org/profession- sociation Test ostensibly detects testimony about implicit bias in (D. Iowa 2012) (Dr. Greenwald’s al-development/ test-yourself-for- bias that the individual does not this case in part because it was a opinion was “conjecture, not hidden-bias). even know he or she possesses — bench trial, recognizing that “the proof of causation”). The Implicit Association Test i.e., “mere unconscious thoughts.” court can hear the testimony at In Jones v. YMCA of the USA, purports to measure implicit bias Nevertheless, some employees trial and determine the weight of 34 F. Supp. 3d 896, 901 (N.D. Ill. lurking in the test-taker’s uncon- already have succeeded in getting the evidence at trial without a fear 2014), the district court granted scious mind. There are different this type of testimony in front of of prejudicing the untrained ear of the employer’s motion to strike tests for a wide variety of purport- a factfinder. For example, in Sa- a juror.” Dr. Greenwald’s expert report ed implicit biases, including race, maha v. Washington State Dep’t Ultimately, however, the court and testimony concerning implic- religion, age, skin-tone, sexual of Transp., 2012 WL 11091843 determined that “Plaintiffs failed it bias in a Title VII class action orientation and disability. (E.D. Wash. 2012), a federal dis- to tie [the expert’s] opinions re- lawsuit. The plaintiffs blandly It is important to note that even trict court denied the employer’s garding implicit bias to the indi- asserted that Dr. Greenwald’s the proponents of implicit bias motion to exclude the testimony vidual circumstances surrounding opinions were offered merely “to research concede that “[t]he link of an expert witness (Dr. Green- their employment … as required educate the factfinder on general between implicit bias and behav- wald himself) in a case in which to prove intentional discrimina- principles.” ior is fairly small [and] can vary the employer argued the expert tion actually occurred.” Martin However, the Jones court deter- quite greatly.” had not identified any particular v. F.E. Moran, Inc., 2018 WL mined that despite what they said, Not surprisingly, plaintiffs’ bias that related to the plaintiff’s 1565597 (N.D. Ill. 2018). plaintiffs actually were seeking to counsel in employment discrimi- race, color, national origin or use Dr. Greenwald’s opinions to nation cases are eager to inject ex- ethnicity nor had he determined The Case against Admissibility prove causation: “Dr. Greenwald pert opinion about the purported whether implicit bias played any of Implicit Bias Testimony maintains that it is ‘more likely ubiquity of implicit bias into cas- role in any particular employment In Wal-Mart Stores, Inc. v. than not’ that implicit discrimina- es where such “evidence” most decision made by the employer. Dukes, 564 U.S. 338, 354-55 tory bias accounts for any dispar- ity between the treatment of Af- ployment discrimination case) is accounting firms, insurance com- it to compensate for gaps in the rican Americans and other racial weak and that the test does not re- panies, large international law evidence, especially regarding groups.” After the court conclud- veal whether a person will tend to firms, and high-profile non-profit the employer’s alleged intent to ed that Dr. Greenwald’s report and act in a biased manner. See “Can organizations, among others. discriminate. But once that genie testimony were relevant neither to We Really Measure Implicit Bias? The pledge requires CEOs to is out of the bottle in front of the plaintiffs’ disparate treatment nor Maybe Not,” The Chronicle of commit “to implementing all of jury, it is very difficult for defense disparate impact race discrimina- Higher Education (Jan. 5, 2017) the elements within the Pledge,” counsel to contain it. Arguing tion claims, it struck them. (https://www. chronicle.com/arti- so there is no picking and choos- that there was no intent to dis- Still another court recently ex- cle/Can-We-Really- Measure-Im- ing which parts to adopt. Further, criminate by the employer after cluded expert testimony about implicit/238807). because the announcement is the jury hears detailed testimony plicit bias, including, once again, public, companies that commit from an expert witness about how testimony from Dr. Greenwald, The “CEO Action Pledge” themselves to the pledge should everyone in the world possesses on the ground that his opinion Despite the growing rejection anticipate that they will be held implicit or unconscious bias will “is not based on sufficient facts by courts of proffered evidence to the commitment and possibly be a Herculean task to say the or data. It is not the product of of implicit bias in employment will have it used against them if least. reliable methods. And it would discrimination cases, hundreds of they fail to implement any of the not assist the factfinder in resolv- CEOs recently signed the CEO elements. ing an issue in this case.” Karlo Action for Diversity & Inclusion One thing is for sure: It is easy Anthony J. Oncidi is a partner v. Pittsburgh Glass Works, LLC, (https:// www.ceoaction.com/the- for a plaintiff’s lawyer to figure in and the chair of the West Coast 2015 WL 4232600 (W.D. Pa. pledge/). The pledge is a well-in- out which companies have signed Labor and Employment Depart- 2015), aff’d in pertinent part, 849 tentioned initiative designed to the pledge — the list of signato- ment of Proskauer Rose LLP in F.3d 61 (3d Cir. 2017) (Dr. Green- promote diversity in the work- ries is publicly available and eas- Los Angeles. You can reach him wald’s “population-wide statistics place. Notably, signatories pub- ily accessed on the web. It is well at (310) 284-5690 or aoncidi@ have only speculative application licly pledge, among other things, known that a number of leading proskauer.com. to [this particular defendant-em- to “Implement and expand uncon- plaintiffs’ lawyers are active- ployer] and its decision-makers”). scious bias education.” ly trolling the pledge website in Moreover, a recent study con- The number and pedigree of search of the names of employers ducted by researchers at the Uni- companies that have signed the who have signed it on the theory versity of Wisconsin, Harvard pledge is impressive. More than that it will be more difficult for University, and the University of 450 CEOs and presidents across those companies to successfully Virginia examined 499 studies 85 industries have signed on al- exclude purported evidence of over 20 years involving 80,859 ready. Some of the nation’s largest implicit bias the next time they’re participants who took the Implicit and most well-known companies sued for discrimination. Association Test and similar tests. are represented here as are some These researchers discovered that of the world’s foremost institu- Conclusion the correlation between implicit tions of higher learning. The list Expert testimony about im- bias and discriminatory behav- also includes leading technology plicit bias can be very powerful ior (which is, of course, the only companies and financial institu- stuff, and plaintiffs’ attorneys thing that is relevant in an em- tions, major retailers, airlines and are increasingly trying to rely on ONCIDI