The Situationist

Archive for July 15th, 2009

What Are the Legal Implications of Implicit Biases?

Posted by Jon Hanson on July 15, 2009

Blind JusticeA federal judge and regular reader of The Situationist recently sent me a thoughtful e-mail containing the following paragraph.  The judge is asking for input regarding the practical legal consequences of IAT research for employment law.

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A thought about the IAT and employment law from a practicing judge–even if the law as it now stands does not effectively address some instances of bias, where do we go with that insight? I see no practical, effective way to utilize the IAT in actual employment cases.  Moreover, by far the biggest problem in employment law that any one studying our actual cases would discern is the surfeit of meritless cases.  The ease with which many weak cases get by summary judgment and the likelihood of substantial litigation expense lead to settlement of  hundreds, and perhaps thousands, of  cases throughout the country each year brought by plaintiffs you or almost any one else reasonably objective (if I can still use that word) would have fired, not promoted, chosen for layoff, etc.  A statutory approach designed to help people get a foot in the door–when that door had
for so long been unfairly closed–is now almost exclusively used by plaintiffs who got the job, got the opportunity. The sense that employment litigation has become something of a settlement racket has led to cynicism in the work place, among the bar, and to some extent even on the bench. I think this is tragic, and a disgrace to the legacy of those who suffered to advance the cause of equality under law.  I am conscious of my own general frustration, and I really do try to be open-minded and fair in dealing with each individual case-  and there are still  meritorious ones that come my way. While I am not a spokesman for the judiciary in even the slightest way, I do think most judges see the area of law as I do, and most, despite concern or frustration, also try very hard to remain open-minded in approaching each individual case. I wonder, do scholars writing about implicit bias and employment law generally have any sense of what the actual cases are like?  Any thoughts?

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Situationist friend and legal scholar Tamara Piety responds as follows:

The judge’s comments raise important issues. But I think these issues have more to do with the problems of the structure of litigation, the cost of litigation and how the presence of financial incentives create a particular sort of (predictable) distortion in outcomes insofar as they depart from what an observer might conclude is the “truth” about the facts. Litigation is binary.

With some qualifications about the way in which the amount of damages can be used as a sort of Solomonic device to split the difference and not clearly find for either party, litigation is binary and you either win or you lose. Moreover, it costs something. So in every civil case that involves a business entity (the purpose of which is to make money not to reform social policy), the persons making decisions on behalf of the entity weight the relative costs of pursuing or defending an action against the financial benefits likely to accrue rather than on the “principle” at issue.

This is true of personal injury lawsuits, intellectual property disputes, contract disputes, in short, disputes of all kinds. So if it is the case that such a racket exists, it is arguably as much due to the financial incentives for defendants to settle as it is the evidence or legal standards, or at least they are inextricably intertwined. Should we blame defendants for “frivolously” settling and thus contributing to the situation of which the judge complains? Probably not, as it would seem awfully burdensome to say that defendants must continue to defend cases where the defense is meritorious, no matter the cost to themselves not to mention economically unsound. The same may not be true of fired, dismissed or non-promoted defendants whose livelihoods are at stake and who *may* (in some circumstances) have few options beyond suing. For these individuals (and for unions) bringing the lawsuit may not be solely about the financial benefit but about dignity, setting and example for others, self-defense, etc.Blind Justice

I am also struck by many aspects of the judge’s comments that draw a picture that contains many implicit assumptions. It is not self-evident to me that the existing employment laws that grant such broad and virtually unreviewable discretion to employers to discharge employees at will is a good thing that any reasonably objective person would agree strikes the appropriate balance of power between employee and employers so that anyone would agree that a particular person should not have been retained or promoted.

Maybe it does, but I am not sure about that. And what if a part of the explanation for the poor performance is a hostile environment that exacerbated the employee’s deficiencies? Moreover, the comment seems to assume that damages are a sufficient incentive to bring such a suit, even though the fact of having filed a lawsuit against a previous employer may make an employee virtually unemployable in their chosen profession. Given the seriousness of the consequences for at least some plaintiffs, I wouldn’t be as apt to conclude that cases without merit were brought frequently (although clearly the judge is in a far better position to judge the current situation in the courts than I).

And, just as it is possible to behave in a discriminatory manner while not intending to do so, that is with a pure heart, I think it might be possible to file a law suit as a plaintiff in the sincere belief that you have been discriminated against even if you have not been.

I also don’t think it is entirely accurate to say that the laws against discrimination were intended “solely” to allow people to get a “foot in the door.” It is of little merit to give someone an opportunity if that opportunity is not a real one because you will be applying standards that the employee cannot meet. I think we have perhaps entered the stage in the country’s development where some of the biggest problems of racial, gender and other bias are not in problems of overt and intentional discrimination, but in trying to ferret out the ways in which we may not be applying standards or rules as even-handedly as we imagine we are, or indeed as we want to do in order to ensure equality of opportunity for all.

The IAT information speaks to that issue. As someone who teaches Evidence I would respond that the place for the IAT evidence is as one piece of evidence that may be offered by a plaintiff – not determinative or conclusive evidence, perhaps not sufficient evidence, but evidence nonetheless. The judge seems frustrated that these cases don’t reach the truth of discrimination and create bad will and hostility to the goals of equality through the promotion of frivolous lawsuits.

I understand that frustration since I experienced that frustration when I practiced law. But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.

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Please post your responses or thoughts as comments.   To read some recent, related Situationist posts, see “Confronting the Backlash against Implicit Bias,” and “The Situation of Situation in Employment Discrimination Law – Abstract.”  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Posted in Implicit Associations, Law, Social Psychology | Tagged: , , , | 6 Comments »


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