What Casey Martin Has To Teach Us About Disability Discrimination In The Workplace

Nicole Buonocore Porter, Martinizing Title I of the Americans with Disabilities Act, 47 Ga. L. Rev. 527 (2013), available at SSRN.

For years, plaintiffs claiming discrimination under the Americans with Disabilities Act (ADA) routinely lost because they were unable to establish the existence of a disability. The result was that arguably the most important aspect of the ADA—the requirement that employers make reasonable accommodations to the known disabilities of their employees—went largely ignored in employment decisions and legal scholarship. All of that started to change with the passage of the ADA Amendments Act of 2008 (ADAAA). With the ADAAA, Congress expressly overruled some of the more restrictive interpretations of the definition of disability, thereby increasing the number of individuals who could claim protection from discrimination under the ADA. Congress was clear that this is the result it wanted and that the proper focus in ADA claims should not be on whether an individual has a disability, but whether the individual is qualified for the position in question, i.e., whether the individual can perform the essential functions of a position, with or without a reasonable accommodation.

Thus, the reasonable accommodation concept should increasingly take center stage in ADA cases. The problem, however, is that there has historically been so little focus on the concept in the employment context that there is considerable uncertainty as to what it means to say that an accommodation is or is not “reasonable.” Judge Richard Posner famously advanced a cost-benefit approach to the question of reasonableness, but his approach has had limited traction. Some judges have taken a case-specific, “I-know-it-when-I-see-it” approach, which leaves parties and their lawyers with little guidance. Nicole Buonocore Porter (Toledo) aims to address the problem of defining reasonableness in the accommodation context in her latest article, Martinizing Title I of the Americans with Disabilities Act.

Porter is not the first author to attempt to provide some clarity to the reasonable accommodation requirement. A couple of years ago, I reviewed Mark Weber’s Unreasonable Accommodation and Due Hardship, in which Weber made the case that, to some extent, the federal courts (including the Supreme Court in its decision in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)) had misconstrued the requirement. Porter does not try to swim upstream as Weber (persuasively) did. Instead, Porter attempts to synthesize the law of reasonable accommodation by drawing up the decisional law involving a different portion of the ADA, Title III.

Title III covers discrimination in public accommodations. The most famous and most detailed Title III decision to date is the Supreme Court’s decision in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), involving golfer Casey Martin’s successful quest to be permitted to use a golf cart in PGA events. Title III speaks of “reasonable modifications” rather than “reasonable accommodations,” and as Porter acknowledges, a golf course is not a workplace (for most people at least). Nonetheless, Porter argues that the Court’s decision in Martin provides a useful framework for analyzing reasonable accommodation issues in employment discrimination cases.

In deciding whether the PGA was required to depart from its no-carts rule, the Court in Martin focused on whether allowing the use of a cart would fundamentally alter the nature of the PGA’s tournaments. The Court concluded that departing from any rule in a competitive setting might fundamentally alter the nature of the event in two ways: (1) by altering an essential aspect of the sport, and (2) by providing a competitor with a competitive advantage. Porter argues that a similar approach both explains the outcomes of most employment cases involving reasonable accommodation disputes and provides a useful approach for deciding future cases. Under Porter’s approach, an accommodation would be unreasonable (1) if it fundamentally alters the nature of the employer-employee relationship, or (2) if it gives an employee with a disability a competitive advantage over other employees. Without going into great detail, Porter provides examples of accommodations that would fall into the two categories, including some of the accommodations that have proven to be particularly troublesome, such as allowing an employee to work from home.

One may take issue with the burdens her approach would place on employers and other employees. But Porter deserves credit for attempting to articulate a standard that would aid courts and parties in their attempts to deal with the reasonable accommodation requirement. “Reasonableness” is an inherently ambiguous term and the ADA is a fairly complex statute. But given the crucial role that the reasonable accommodation/modification concept plays in the ADA and the increased role it will play following passage of the ADA Amendments Act, a unified approach to the concept might not be such a bad idea. Porter’s suggested approach gives courts and scholars something more tangible to deal with when considering accommodation issues. At a minimum, Porter has offered a potentially useful way to consider the issue and one that may aid courts in future cases.


The Trouble with Heuristics in Sexual Harassment Litigation

Jessica A. Clarke, Inferring Desire, 63 Duke L.J. (forthcoming 2013), available at SSRN.

Fifteen years ago, the Supreme Court recognized that harassment between members of the same sex could be actionable under Title VII, in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998). Prior to that case, lower courts had struggled to determine whether such intra-group harassment could be because of sex. In its decision, the Supreme Court identified several heuristics, or evidentiary shortcuts that could be used to support an inference that the harassment was because of sex, including that the harasser was gay. If the harasser were gay, we could infer that the harasser desired the plaintiff sexually, and could further infer that the harasser would not have treated a member of the opposite sex the way the harasser treated the plaintiff. Focusing on this heuristic, Jessica Clarke’s new article, Inferring Desire, is an important contribution to the literature on sex discrimination, not only in this context, but also more broadly. In the article, she studies all of the same-sex harassment cases that have resulted in opinions since Oncale was decided. The article’s primary focus is on the large number cases in which the courts attempt to infer the sexual orientation of the harasser as part of the analysis, focusing on desire to the exclusion of other ways to prove that the harassment is because of sex. Clarke’s study reveals that the courts seem to posit an idealized romantic version of same-sex desire that privileges heterosexuality and camouflages sexism.

The article begins by explaining how the sexual orientation and desire heuristics work. As Clarke notes, the Supreme Court defined the critical issue in sexual harassment cases to be “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It further outlined some ways this could be proven including that proposals of sexual activity could demonstrate the different treatment if “there were credible evidence that the harasser was homosexual,” and thus presumably motivated by sexual desire that would operate differently on the sexes. Although this was not the only route to proof of sex-different treatment, Clarke found that courts had relied on desire in allowing plaintiffs to proceed past summary judgment more often than all other reasons combined. Moreover, the courts conflated homosexuality with desire in most of those cases, which meant that they often engaged in extended analysis of the sexual orientation of the harasser.

Clarke delved further than the numbers, analyzing how the courts defined and divined the sexual orientation of the harasser. Overall, courts seemed to require that the harasser be out as gay at work before they would find credible evidence that the harasser was gay. This was a powerful finding. Without it, courts tended to find that there was no evidence that sexual conduct was motivated by desire and therefore no evidence that it was because of sex. Conversely, with it, the courts assumed that conduct the plaintiffs complained about was motivated by desire and because of sex, even if the conduct would not be interpreted as sexual in other contexts. Moreover, the picture of same-sex desire these courts perpetuate is an idealized version of romantic love that interprets the conduct at issue as attempts at earnest romance.

The article’s bottom line is that these heuristics and the view of homosexuality they perpetuate result in discrimination against sexual minorities in the workplace. Additionally, they cannot be justified by any of the normative theories on why harassment is discrimination and in fact distract us from the question of discrimination. Clarke thus urges courts to stop using desire as a heuristic in any sex harassment case. While the description of what courts have been doing in same sex harassment cases is important to our understanding of what is happening in this area, this section of the paper comparing the courts’ analyses to the normative question is arguably the most valuable contribution of this paper.

Clarke identifies the three primary theories of the harm of sexual harassment, in admittedly broad and stylized terms. The three schools of thought are these: harassment is sex discrimination (1) because it facilitates masculine domination; (2) because it perpetuates female disadvantage; or (3) because it constitutes sex differential treatment. Using desire as the heuristic does not satisfy the normative goals of the dominance theorists because cases that define harassment as caused by an idealized form of romantic love don’t see the way that humiliation, hostility, or threats of violent sexual assault between members of the same sex could perpetuate masculine domination and be sexual harassment. Conversely, in opposite sex contexts, this conduct would easily be seen to be discriminatory. The critique from the female disadvantage theory is similar. A focus on desire miscasts harassment as awkward attempts at romance rather than as an expression of hostility towards members of one sex or as a way to penalize employees for failing to conform to gender roles. Finally, even though it seems a better fit for the disparate treatment school, the desire heuristic is not actually being applied in the same-sex context; rather, sexual orientation is being used as a heuristic for desire so that sexual conduct by harassers who are not out as gay at work is not considered sex harassment even if their conduct strongly suggests they were motivated by sexual desire, and conduct by gay employees is found to be harassment even when that conduct would not be perceived as sexual or harassing in an opposite sex context. Essentially, all three schools of thought would criticize the focus on desire as distracting from the question of whether the conduct at issue was sex discrimination.

The paper ends by tracing some of the implications of these findings for other contexts where courts may have to define sexual orientation or make inferences about it. In this way, the main focus of the paper is made clearer, that the article’s critique is about the undertheorized nature of sexual orientation in law and the failure of courts or legislators to tailor a definition of sexual orientation to the purposes of the statute or program at issue.

To the extent that the article contains a weak point, it might be that the same could be said of sex or gender more broadly. Everywhere that sex is a classification, used legitimately or not, we have to ask what sex is. It is not clear whether it is a genetic question, a question about reproductive organs, or a behavioral question. And within each of those categories, there is significant variation. Sometimes genes, reproductive organs, and behaviors don’t line up in ways we expect. Thus, in many contexts, the courts are struggling to define what sex and gender mean. In discrimination law alone there is significant indeterminacy. For example, the Supreme Court decided in the early 1970s, and reaffirmed just a few years ago, that pregnancy and sex are distinct enough that discrimination on the basis of pregnancy is not usually discrimination on the basis of sex. And the sex stereotyping line of cases are creating some seemingly inconsistent results especially where issues involving sexual orientation or sexual identity might be concerned, but also where sex-linked conduct like caregiving is at issue.

Despite this small critique, Clarke’s article remains a very valuable contribution to the way courts are mishandling same sex harassment cases and the need to look for better understandings of what sexual orientation might be and how law might protect sexual minorities better. It also adds one potential facet to the discussion about what sex and gender encompass for purposes of legal analysis. And although Clarke explicitly declined to take a normative stand on the harm of harassment, I look forward to reading more about her normative theories in future work.


A Fresh Look at Dukes

Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, 44 U. Tol. L. Rev. 123 (2012) available at SSRN.

The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, by Natalie Bucciarelli Pedersen—aside from having quite possibly the best title of any article, ever—is an important and informative reminder that one of the most newsworthy and talked about cases of the past decade, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has import and significance beyond the realm of class action lawsuits. Indeed, as Professor Pedersen makes clear, the Supreme Court “not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law.” (P. 124.) The major contribution of this article is its original examination of the impact of the language and law in the Dukes opinion on substantive Title VII jurisprudence as it applies to the adjudication of disparate impact cases, systemic disparate treatment cases, and implicit bias cases that utilize social framework evidence.

As Professor Pedersen recounts, in 2011, the Supreme Court reversed a grant of class certification to some 1.5 million female Wal-Mart employees who claimed that they were victims of sex discrimination because of inequalities related to the employer’s salary, promotion, and management track policies and procedures. The policies and practices alleged, however, were not explicitly discriminatory. In making out their disparate impact claim, the plaintiffs pointed to the delegation of decision-making discretion to local managers when it came to pay and promotion decisions. In making out their disparate treatment claim, the plaintiffs alleged that despite knowing of the disparate impact conferred upon women by the unfettered discretion afforded to local managers, Wal-Mart intentionally failed to remedy the situation. The District Court certified a class of at least 1.5 million women, and the Ninth Circuit agreed that the class certification requirements set forth in Federal Rule of Civil Procedure 23(a) had been met. The Supreme Court, however, reversed the Ninth Circuit’s holding that class certification had been appropriate in the case, finding that the plaintiffs did not “depend upon a common contention.” (P. 128.)

Professor Pedersen departs from many other scholars’ analyses of Dukes by looking at the effect of the opinion on substantive employment discrimination law, and not on the future or mechanics of class action lawsuits.  For example, she contends that Dukes will affect cases brought under a disparate impact theory to protest subjective decision-making practices. Specifically, she notes that whereas the Supreme Court in its previous Watson decision had been receptive to the idea that a subjective selection or decision-making system could be the basis of a disparate impact claim, the Dukes Court “noting how the resolution of the class certification almost necessarily overlaps with the issues of the merits of the case, found that commonality does not exist because the plaintiffs’ claims ‘must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.’” (P. 131.) The Dukes Court, according to Professor Pedersen, acknowledged that a general policy of discrimination could form the factual predicate for a viable claim, but noted that the policy needed to “manifest[] itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision making processes.” (P. 131.)

The article thus trumpets the impact of Dukes upon the substantive law of employment discrimination, starting with its effect on disparate impact. Professor Pedersen questions whether, in light of the Court’s “dismantl[ing of] the Watson precedent,” (P. 132), how any plaintiffs could “ever successfully argue that the delegation of subjective authority to supervisors has a disparate impact on a particular class of employees?” (P. 132.) Indeed, the treatment of the commonality element in Dukes makes one wonder whether employing disparate impact theory in cases in which unregulated subjective decision-making discretion is challenged will be unwieldy and untenable. Moreover, as the article points out, subjective bias is more likely to evade capture by existing legal frameworks when plaintiffs are held to impossibly high standards of articulating “a more specific practice than this delegation of authority.” (P. 134.)

The article also points to effects of the Dukes decision on systemic disparate treatment cases, noting that the Supreme Court in Dukes looks to have heightened the burden imposed on systemic disparate treatment plaintiffs, departing from the language from Teamsters that is conventionally invoked: “The Court demanded a policy that led to a common injury—seemingly ignoring the fact that the language of Title VII as interpreted in Teamsters calls for either a policy or a practice of discrimination. . . . The key to a pattern or practice of discrimination was never a policy of discrimination, but rather the regular employ of discriminatory intent. Dukes has changed this.” (P. 136-37.)

Finally, the article recites, Dukes reflects a much less receptive attitude of courts to social framework evidence, which consists of the results of social science research employed to create a context for aiding in the finding of a case’s factual issues. Referring to the Dukes Court’s “quick, but excoriating, dismissal of the social framework evidence,” the article concludes that the Court appeared to refuse to be receptive to any social framework evidence other than that which was restricted to “general knowledge and background without any application or linkage by a testifying expert to the facts of the case.” (P. 141.) Such a move, the article observes, “has staggering implications for employment discrimination cases,” (P. 141), because implicit bias cases tend to depend upon establishing a nexus between social psychology and specific employment practices.

The implications of Dukes for class action lawsuits have been discussed at length, but this article thoughtfully contemplates its ramifications for substantive employment discrimination law. It is good to see scholarship that is vigilant and that departs from what so many others are doing. This piece is observant and insightful, and it will be great to see what its author produces next as she monitors the legal landscape in this ever-changing field.


More Hair-Raising Decisions, and How Professor Wendy Greene Combs Through Their Flaws

D. Wendy Greene, Black Women Can't Have Blonde Hair . . . in the Workplace, 14 J. Gender Race & Just. 405 (2011), available at SSRN.

If you are looking for an interesting and timely employment discrimination article to read, please consider Black Women Can’t Have Blonde Hair . . . in the Workplace, by Professor Wendy Greene of Cumberland, Samford University, School of Law. In that article, Professor Greene builds upon the work that she began in her article Title VII: What’s Hair (and Other Race Based Characteristics) Got to Do With It1 where she argued that characteristics that are commonly associated with a particular racial or ethnic group should fall under Title VII’s current protected categories of race, color, and national origin. Professor Greene also builds upon a seminal work in Critical Race Theory, A Hair Piece: Perspectives on the Intersection of Race and Gender2, which was written by Professor Paulette Caldwell of New York University School of Law more than twenty years ago.

In A Hair Piece, Professor Caldwell used the case Rogers v. American Airlines to expose the ways in which employer grooming codes can be used to discriminate against black women at the intersection of race and gender. In Rogers, a black female employee of American Airlines filed a lawsuit under Title VII, arguing that her employer discriminated against “her as a woman, and more specifically, a black woman” through a grooming policy that prohibited employees who had customer contact from wearing all-braided hairstyles. In dismissing Rogers’s claims based on American Airlines’s appearance grooming regulations, the district court provided two basic reasons for its decision (without actually ever addressing the plaintiff’s intersectional discrimination claim): (1) that the challenged appearance code did “not regulate on the basis of any immutable characteristic” and (2) that the challenged policy applied equally to both races and sexes. Professor Caldwell astutely argued that the flaw in Rogers was that it rested upon the premise that racism and sexism existed and operated separately and independently from each other.

The year 2011—the year in which Professor Greene published her Black Women Can’t Have Blonde Hair . . . in the Workplace article—marked the twentieth anniversary of the publication of Professor Caldwell’s seminal Hair Piece article. It also marked the thirtieth anniversary of the Rogers v. American Airlines decision. The upcoming anniversary of both Professor Caldwell’s article and the Rogers decision inspired me to revisit the question of race and gender discrimination based upon hair restrictions in employer grooming codes.3

Professor Greene, too, was moved to write about this form of discrimination against black women that has not changed either in its practice by employers or its recognition by the courts for twenty years. When I asked Professor Greene about her motivations for writing Black Women Can’t Have Blonde Hair . . . in the Workplace, she wrote the following to me:

Reading the blonde hair cases struck a personal chord with me as my mother at the time was wearing a short dyed blonde hair style, and my aunt was born with blondish-red hair; for as long as I can remember, my aunt’s hair has always been some shade of blonde. The personal/legal issue that arose in reading these cases for me is: per the immutability doctrine that courts have advanced uncritically, why should my mother not be protected against an employer’s decision that her hair is “extreme” because she is a Black woman wearing blonde hair yet my aunt theoretically could be protected against such a prohibition, because her blonde hair was “natural”? Shouldn’t both women be protected under the law? In both cases, the prohibition stems from this notion that only white women can don blonde hair, as blonde hair is presumed natural only for white women. Accordingly, a prohibition against blonde hair enforced against a Black woman is not simply about her hair color but has everything to do with her race, color, and gender—her socially constructed status as a Black woman. Thus, the viability of Black women’s challenges against employers’ hair regulations under our discrimination laws should not hinge upon this legal fiction of immutability.

Interestingly, at the time I was writing this article, my mother was making a community-wide presentation in my hometown. After her presentation, an Egyptian woman initiated a conversation with my mother, commending her on her presentation. During the conversation, however, she also expressed to my mother (who was wearing blonde hair at the time) that as an African woman she found it “offensive” when Black American women wore blonde hair. My mother engaged her further on her beliefs and mentioned that her thoughts were quite timely, as her daughter was currently writing an article on this very issue of race/gender discrimination with respect to the discrimination Black women encountered when they wore blonde hair in the workplace. This conversation reminded me very much of the Bryant case and forced me to ponder hypothetically: what if my mother worked for this Egyptian woman who held very similar beliefs as the supervisor in the Bryant case? What if other Black women worked with/for her and she imposed her ideas about hair colors Black women should wear and thereby excluded Black women from employment opportunities, harassed Black women, and/or denied privileges of employment in the process? Do our courts and our antidiscrimination laws protect Black women, like my mother, from such discrimination?

As Professor Greene spells out so nicely in her article, the answer to her questions, even twenty years after Rogers, is a resounding no.

In her article, Professor Greene not only examines cases since Rogers that involve black women who wear natural hairstyles like braids, twists, and locks, but also introduces a new subset of “hair stories” involving black women who are barred from wearing blonde hair in the workplace, such as Burchette v. Abercrombie & Fitch Stores, Santee v. Windsor Court Hotel, and Bryant v. BEGIN Manage Program. Through her overview of “hair cases,” Professor Greene illustrates that courts, by essentially upholding employers’ regulations on braids, locks, and twists, have severely constrained “Black women’s freedom, choice, and dignity” and have “constructed and reified a very narrow space in which Black women can express their natural or chosen style or color without reprobation, stigmatization, or exclusion.”

In so doing, Professor Greene demonstrates how courts have limited grooming-code-based, employment discrimination claims brought by black women in one major way: by adopting an “immutability doctrine” in race discrimination cases, in which Title VII remedies discrimination only when based solely upon an immutable characteristic such as skin color. Professor Greene highlights that, when adverse employment decisions are made due to the confluence of “immutable” and mutable characteristics, such as hair, courts repeatedly find plaintiffs’ challenges to these employment decisions to be outside of the purview of anti-discrimination law and “immaterial” to equal employment opportunity.

In the end, Professor Greene argues that a few key factors, such as an intersectional analysis; race and gender-based privilege; race and gender-based stigmatization; an acknowledgment that mutable characteristics are racialized; an understanding of differential treatment within race and gender groups; and lastly an understanding that hair regulations can impact a Black woman’s equal employment opportunities in tangible ways, are missing from courts’ analyses of black women’s claims of discrimination based on hair regulations. She concludes by calling for renewed attention to the intersectional, race, color, and gender-based discriminatory harms that black women experience due to the enactment and enforcement of formal and informal hair regulations in the workplace.

  1. 79 U. Colo. L. Rev. 1356 (2008), []
  2. 1991 Duke L.J. 365 []
  3. Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1103 (2010). []

Choose or Lose

• Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).
•  Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012).

The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation.  Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector.  Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years.  One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile.  But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.

In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages.  They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates.  Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.”  (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.”  (p. 719)  According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory.  Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2).1  Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice.  The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides.  Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option.  Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions.  Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result.

With their focus on providing time and information for employee deliberation free from coercion or influence, Eigen and Sherwyn implicitly use a cost-benefit approach in framing the representation decision.  Brishen Rogers takes on this model in Passion and Reason in Labor Law, in which he rejects the notion of cool calculation in favor of a hotter process.  Rather than taking workers’ preferences as exogenously determined and static, Rogers argues that the primary goal of an organizing campaign is to empower workers as a group and thereby change their understandings—and desires—about their role in the workplace.  Although he does not assert that the standard cost-benefit model is directly flawed, he does argue that its (implied) focus on a calm, deliberative process fails to include the powerful emotional and collaborative elements that drive many union campaigns.  Rogers is careful and couched in his suggestions for reform, but his primary point seems to be that a union is less a service to be purchased, and rather a movement to be joined.  Union organizers may spark social cascades and induce group polarization not to make employees buy in irrationally, but rather to overcome fears and norms against unionization that have been entrenched within the law and society.  In fact, Rogers argues that the workers themselves are transformed into a unit that “acts like a union”—meaning that the workers have assumed ownership of their collective relationship.  Thus, instead of an individualized cost-benefit analysis, the choice to join the union is based on joint action that seeks to bond the workers together and create a new process for channeling workplace power dynamics.

The contractual, cost-benefit approach of Eigen and Sherwyn may seem worlds away from the passionate, communitarian approach proffered by Rogers.  But both, in a sense, are looking for the representation election to provide more than simply an up-or-down decision on the union question.  Rogers is looking for workers to transform their relationships not only with their employer but also each other.  And Eigen and Sherwyn are looking to empower workers to make decisions in an environment with sufficient information and free of intimidation.  In fact, they propose using a commissioned study of workers involved in various types of representation election regimes to determine which method works best.  Both articles are imagining a world in which the actual decision seems somewhat secondary—it is the process of getting to that decision that matters.  However, both articles also cast doubt on the end results of that process.  Eigen and Sherwyn assume that voluntary compliance with principles of neutrality, honesty, and lack of coercion will be sufficient to arm employees with the tools they need to make the best representation decision.  But they fail to explain what kinds of truthful information would be useful to make the decision, and whether employees are in a good position to assess that information themselves.  Rogers’ model stems in part from actual organizing experiences (including his own), and it smacks more of the hurly-burly of a typical campaign.  But Rogers seems to assume that the passion and solidarity generated by union organizers can have only salutary effects.  Emotional and social appeals have been used for a lot of purposes, from selling gold coins to evangelizing for converts.  According to Rogers, the very process of union organizing will create workplace democracy, at least in some form.  But others may not be as sanguine that a campaign carried on by experienced operatives will always take its participants to a better place.

Both A Moral/Contractual Approach and Passion and Reason delve more deeply into the process by which employees decide whether to join a union.  While much about this process remains unknown, we are fortunate to have two new frames of observation provided by these talented scholars.

  1. FN: They do acknowledge that such an assessment is not supported by recent Board or judicial authority. []

The Uncertain Impact of Wal-Mart v. Dukes

Elizabeth Tippett, Robbing a Barren Vault: the Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L. J. 433 (2012).

Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berk. J. of Emp. & Lab. Law, 455 (2011).

It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class action litigation. The articles, in my view, together make the case that at least in the absence of legislative or judicial qualification, the Dukes decision’s 5-4 split holding on the commonality requirement in FRCP 23(a)(2) may have less of an impact than the Court’s unanimous dicta on the limited remedies allowed for Rule 23(b)(2) classes and the unavailability of statistical modeling to facilitate the certification of Rule 23(b)(3) classes.

Professor Tippett’s article provides support for questioning the impact on employment discrimination litigation of the Court’s holding that the plaintiffs in Dukes failed to provide support for there being a question of law or fact that would have a common answer for all members of the class of female nation-wide Wal-Mart employees for whom class certification was sought. Tippett does not attempt to narrow the thrust of Justice Scalia’s opinion for the Dukes majority. She recognizes language in the opinion that holds “the bare” delegation of discretion does not qualify as a “specific employment practice” open to disparate impact challenge as a subjective employment practice under the Court’s prior decision in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). Tippett also understands Scalia’s opinion broadly to preclude systemic disparate treatment pattern or practice claims being based on “a decentralized policy of subjective decision-making alone.”

Professor Tippett’s questioning of the impact of the Dukes holding instead is based on her comprehensive review of all cases filed from 2005 to mid-2011 making either disparate impact or pattern or practice claims against subjective employment practices.  She concludes that such cases were “very uncommon” pre-Dukes and that “about half” of the cases that achieved certification or survived summary judgment could do so post-Dukes. She also isolates characteristics of those cases that achieved certification that would distinguish Dukes, including the limitation of the class to a single city or facility or to those subject to a single or small group of decision-makers, and the decision-makers’ disregard of possible objective criteria. Tippett’s methodology had limitations, at least some of which she fully recognizes. Yet, I think her study provides a template or basis for comparison with post-Dukes class certification decisions in the lower courts. Are those decisions certifying classes that challenge the unguided discretion of a single or small group of decision-makers at a particular facility in a particular district? Are the decisions certifying classes that challenge other subjective practices than “bare” delegation, including the subjective application of objective criteria?

The impact of Dukes on employment discrimination litigation, however, may not be limited to its effects on the types of cases challenging subjective employment practices that can meet the standards it sets for achieving “commonality” under Rule 23(a)(2). It is of course not sufficient for class certification to meet the prerequisites, including commonality, set forth in Rule 23(a). Class certification also requires fitting in one of the three categories defined in Rule 23(b). Because Rule 23(b)(1) presumably does not offer a fit for employment discrimination classes, the Dukes Court’s unanimous conclusion that classes cannot be certified under Rule 23(b)(2) where any form of individualized monetary relief is sought makes the standards for certification under (b)(3) critical. Professor Hart’s succinct article, in my view, appropriately highlights the threat that the Dukes Court’s accompanying dicta against the use of statistical modeling in Title VII cases will make it “nearly impossible” in many employment discrimination cases to meet the (b)(3) standards of predominance and superiority, regardless of whether the cases challenge subjective or objective policies or practices. As Hart explains, Justice Scalia interpreted the Court’s decision in Teamsters v. United States, 431 U.S. 324 (1977) and section 706(g) of Title VII to require a determination through additional individualized proceedings of which particular members of the class are due monetary relief because of being actually injured by the discrimination. In most employment discrimination cases, the need for such individualized proceedings could make certification of a class of any significant size seem impractical. Hart thus views Justice Scalia’s rejection of the avoidance of individualized proceedings by any form of sampling to determine the aggregate level of class-wide damages to be distributed throughout the class to be as “troubling” as his treatment of commonality.

Professor Hart persuasively argues that Justice Scalia’s interpretation of Teamsters and of section 706(g) were incorrect. She explains further why statistical modeling may be both more efficient, and also fairer for a plaintiff class, while employers care only about their aggregate liability, rather than the identities of individual victims. Hart concludes not only with a proposal for legislative change, but also with the “hope” that courts will use their discretion under Rule 23(c)(4) to certify a class “with respect to particular issues” to allow certification of a (b)(2) class for purposes of obtaining injunctive relief against discriminatory practices without preclusion of subsequent individual actions for monetary relief.

Regardless of whether Professor Hart’s criticism of Justice Scalia’s analysis is fully correct, her article raises critical questions that must be answered by the lower courts before the impact of the Dukes decision can be fully assessed. For instance, to what extent will lower courts reject (b)(3) certification because of the prospect of burdensome individual proceedings, even though prior settlement is likely? How will the critical relationship between Rules 23(b)(3) and 23(c)(4) be resolved? The answers to questions like these posed by the court’s dicta against statistical modeling ultimately may be more important than those posed by the Court’s holding on commonality.


Res Ipsa Loquitur & Employment Discrimination?

William Corbett, Unmasking a Pretext for Res Ipsa Loquitur:  A Proposal to Let Employment Discrimination Speak for Itself,  62 Am. U.L. Rev. -- (forthcoming, 2013), available at SSRN.

In this article Professor William Corbett does an excellent job of explaining the “tortification” of discrimination law and how the McDonnell Douglas analysis can be viewed as a form of the res ipsa loquitur doctrine. Professor Corbett’s analysis of this issue provides a fresh look at a well-known tort doctrine, and its possible application to discrimination law.

In the first part of his article, Professor Corbett examines how employment discrimination has been transformed by tort law over time. He explains how, subsequent to the passage of Title VII, tort law has been “vigorously infused” into discrimination doctrine. Professor Corbett traces how this transformation has occurred over time — looking at how tort law principles can be found in Price Waterhouse v. Hopkins and section 1981a of the Civil Rights Act of 1991. He also demonstrates how the move toward tort law can be found in the types of claims being pursued by plaintiffs, as well as the limited availability of the class action mechanism for workforce victims. Finally, looking at a number of more recent Supreme Court cases, he shows how tort principles now play a major role in employment discrimination cases.

In the next section of the paper, Professor Corbett provides a unique look at how the three part burden shifting framework of McDonnell Douglas is “modeled on a tort analysis.” More specifically, he examines the connection between this framework and res ipsa loquitur, exploring the similarities between the two analyses. He concludes that res ipsa loquitur has much in common with McDonnell Douglas, “given its nebulous nature, reticence of courts to ease the usual litigation burdens of plaintiffs without justification, and the skepticism about the inference or presumption to be drawn based on surrogate questions. . . the doctrine is more trouble than it is worth.”

In the final section of the paper, Professor Corbett argues that—given the similarities (and inherent problems) of res ipsa loquitur and McDonnell Douglas—the time has come to do away with this framework. He maintains that the problems and confusion created by McDonnell Douglas suggest that the framework should be replaced. In its place, Professor Corbett advocates for mixed-motives analysis for employment discrimination claims. He explains why a mixed-motives analysis would be preferable for workplace claims, and examines the specific issues that would arise with attempting to import this analysis to age cases. Professor Corbett further examines the implications of his proposal for the same-decision defense.

This piece—just like the superb scholarship of Charles Sullivan and Sandra Sperino on the role of tort law in employment discrimination—provides a novel look at how we approach workplace misconduct. The idea Professor Corbett explores is fascinating and has practical implications: if the most significant test in employment discrimination law shares so much with a troubled tort doctrine, should we continue to embrace it? I personally disagree with Professor Corbett’s ultimate conclusion that we should abandon the McDonnell Douglas framework. Though I may be in the minority, in my view, there is a lot of value to the structure it creates, though it admittedly has its shortcomings. This is simply a difference of opinion, however, and Professor Corbett has identified and beautifully examined a critical parallel between employment discrimination and tort law. The importance of how the principles of tort law have found their way into workplace claims cannot be overstated. This piece provides a helpful look at how one specific tort doctrine in many ways parallels the most important employment discrimination framework. The question now is whether, “[l]ike the infamous barrel that fell from the warehouse and spawned res ipsa loquitur, McDonnell Douglas needs to be cast out of employment discrimination law.”


Is Arbitration Lawless?

W. Mark C. Weidemaier, Judging Lite: How Arbitrators Use and Create Precedent, 90 N. C. L. Rev. 1091 (2012), available at SSRN.

Ever since the Supreme Court, in Gilmer v. Interstate Johnson/Lane Corp., 500 U.S. 20 (1991), and Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), gave employers the green light to require their employees as a condition of employment to waive their right to sue for violations of employment statutes and to mandate arbitration of any claims that may arise, debate has flared over whether such employer-imposed arbitration mandates should be prohibited, allowed or regulated.  The debate intensified after the Supreme Court’s decision in 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009), held that unions may waive employees’ rights to sue and require that they pursue their statutory claims through the collective bargaining agreement’s grievance and arbitration procedure.  The criticisms include the concern that widespread arbitration mandates will lead to a privatization of public law, with arbitrators that are not bound by public law authorities producing awards of no precedential value.

W. Mark C. Weidemaier’s article, Judging Lite: How Arbitrators Use and Create Precedent, provides empirical insight into the concerns regarding the privatization of public law.  Weidemaier worked from a database of 206 class action arbitrations, every class action award available through the American Arbitration Association (AAA) between 2003-2009; 203 randomly selected securities arbitration awards issued between 1995-2009 available through FINRA and its predecessors; 231 AAA employment arbitration awards randomly selected between 1999-2008, available on Lexis; and 208 labor arbitration awards rendered between 1980-2009, randomly selected from among awards published in the BNA Labor Arbitration Reports.  He analyzed these awards to gauge the extent to which arbitrators cited and engaged with precedent.

Weidemaier, not surprisingly, found very little citation to precedent in securities awards because reasoned opinions accompanying those awards are extremely rare.  Among labor awards, 48.6% cited to at least one precedent, as did 66.7% of employment awards, and 71.8% of class action awards.  Within those groups, 14.9% of labor awards cited only to judicial precedent; for class action awards it was 83.8% and for employment awards it was 98.7%.  On the other hand, 76.2% of labor awards that cited precedent cited arbitration precedent and 35.6% cited only arbitration precedent.  In contrast, only 15.5% of class awards cited arbitral precedent and only 1.4% of those awards cited only arbitral precedent.  Only 1.3% of employment awards cited arbitral precedent.

Weidemaier attributed the differences in types of authorities cited to the different nature of each type of arbitration.  Labor arbitration is concerned predominantly with interpreting and applying collective bargaining agreements and is frequently fact-based, making it more likely that arbitrators will not cite any precedent and more likely that when they do cite precedent, it will be other arbitration awards.  Employment awards are much more likely to be adjudicating statutory claims, resulting in arbitrators looking to judicial authority interpreting the statute.  Arbitral authority is far less relevant.  Class awards look more to judicial authority but many deal with whether class arbitration is permitted under the contract and, consequently, in Weidemaier’s view, they are more likely than employment awards to look to arbitral awards interpreting similar contracts.

Weidemaier randomly selected 25 cases in each group, excluding the securities arbitrations.  He analyzed in each case whether the arbitrator’s citation of precedent was “strong,” which he defined as whether it quoted more than a single word or phrase from the cited authority whether it devoted more than two sentences to discussing the authority, and whether it explicitly relied on the cited authority.  He found that 33.3% of citations in labor awards were strong, as were 30.1% of citations in class awards and 20.7% of citations in employment awards.  He found that 5.4% of citations in labor awards, 9.1% in class awards and 9.2% in employment awards distinguished the authority cited.

Finally, Weidemaier randomly selected 25 U.S. district court opinions from among those found in a Westlaw search looking for discrimination, harassment and retaliation cases, and compared them to the arbitration awards.  He found that district judges cited more precedents and had more strong citations than arbitrators. Hence the title of his article, Judging Lite, suggests that arbitrators are engaged with the public law but not with the same intensity as judges.

Candidly acknowledging many limitations to his study, Weidemaier found no evidence outside of securities arbitration that arbitrators were deciding cases in an ad hoc fashion.  Rather, he noted, the process has become highly legalized and arbitrators appear to be trying to follow the public law when it is at issue before them.  He also called on judges to engage with arbitral awards.  Recognizing that judicial review of arbitration awards is very limited, he suggests that judges discuss arbitral authority in their opinions, thereby providing valuable feedback to the arbitrator community.

W. Mark C. Weidemaier’s article is a valuable addition to the growing body of empirical studies of arbitration, particularly arbitration of statutory claims mandatorily imposed by a stronger party on a weaker party to a transaction.  It is part of a body of work that should be required reading for all participants in the on-going debate over arbitration mandates.


Public-Sector Unions, Public Employees: May You Live in Interesting Times

Joseph E. Slater, Public Sector Labor Law in the Age of Obama, 87 Ind. L. J. 189 (2012)

In 1959, Wisconsin became the first state to grant collective-bargaining rights to its public workers. The next half-century witnessed the rise of public-sector unions. As union density declined in the private sector, it increased in the public sector such that, by 2010, 7.6 million public-sector employees belonged to a union as compared with 7.1 million private-sector union workers. Many celebrated the public-sector union as the big success story. The fortune of public-sector unions and their members seemed, however, to turn on a dime with the 2010 mid-term elections. The past two years have witnessed some of the most pernicious attacks on public employees and their unions in the past half-century. Too contrived to be ironic, among the first and most virulent of these attacks began in Wisconsin.

Here’s where Professor Joseph Slater’s latest article, Public Sector Labor Law in the Age of Obama, begins. Professor Slater tackles four big issues: (1) recent political attacks resulting in legislative changes in the context of the current economic crisis and debate over public employee pensions; (2) bargaining and legal issues created by the current economic crisis; (3) the debate over whether and to what extent certain categories of employees (specifically Transportation Security Administration employees, police, and firefighters) should have collective-bargaining rights; and (4) the Missouri state constitutional requirement that employees have a right to bargain collectively.

In Part I, Professor Slater surveys the main reasons for recent political attacks on public-sector unions, carefully separating myth from fact. Myth: Greedy public-sector unions heavily contributed to state budget shortfalls by insisting on fat pension plans for their members. Fact: Most states set their employees pension plans by statute or regulation, not by collective bargaining. Fact: Public employee pension funds only account for 3.8% of state and local spending. Fact: Many state pension plans are underfunded. Fact: Most of the contributing causes to state pension underfunding—including state politicians’ having diverted state monies away from pension plans toward other projects, questionable actuarial practices, and stock market declines—were outside the control of public-sectors unions. Fact: Collective-bargaining rights are not correlated with state budget deficits.

Professor Slater also debunks the myth of the overly paid public servant, including the belief that public-sector pension plans are always too generous. According to Slater, the data reveal that most such pensions are modest and that states are increasingly cutting back on their contributions. These data must be judged in light of the fact that over one-third of all public employees are not eligible for social security. Along these lines, Slater recounts studies that have cogently contradicted the myth that public servants are over-paid. These studies, Slater explains, are more reliable because they break out categories of workers, comparing apples to apples rather than comparing private-sector janitors to public-sector lawyers. Accounting for education, experience, and other significant factors, these studies show that public servants remain undercompensated by several percentage points. This is true even when factoring in benefits, including pension plans.

Part I ends with a survey of states, most notably Wisconsin and Ohio, that have eliminated or attempted to eliminate collective-bargaining rights for public employees. In this section, Slater argues that, because such laws have no effect on budget deficits, they must be intended to harm unions as an institution.

These arguments naturally segue into Part II’s review of how the current economic crisis has shaped legal and bargaining issues. Slater details interest-arbitration cases and furlough disputes based on contract clauses to highlight the observation that public employers have been shifting the burden of budget management onto public employees.

To be sure, someone has to pay for budget deficits, which can be cut by reducing spending or increasing revenue, most notably through tax increases. Increasing revenue is difficult in a recessional era of unprecedented unemployment rates and a shrinking tax base. Blaming public employees for state budget deficits and reducing spending by cutting payroll—either by slashing public employee benefits or furloughing employees—is much more politically expedient than either tax increases or cutting popular public programs. This problem for public workers is exacerbated by the reality that most public employees cannot strike and many arbitrators have been persuaded, at least to some extent, that state governments need to cut expenses. But public officials who furlough without dialogue are taking the easy way out. Wouldn’t it be better for society to have an honest dialogue that revealed that public-sector unions have no control over the budget and that to the extent that unions gained benefits for public workers they did so through bargained-for exchanges. That means that public employees gave up something, perhaps wages, in exchange for delayed compensation in the form of benefits. Parts I & II of Slater’s article provide ample evidence to support such a dialogue.

Parts III and IV present several instances of the right to bargain among transportation safety employees, firefighters, police officers, and in general under one state’s constitution.  As Slater points out, after the 9/11 terrorist attacks, the Bush administration’s newly minted Department of Homeland Security (DHS) created the Transportation Security Administration (TSA).  Shortly thereafter, TSA Administrator James Loy issued an order forbidding TSA employees from engaging in collective bargaining. The stated rationale for this order was the employees’ “critical national security responsibilities.” This order, together with other moves by the Bush administration to decollectivize federal employees, has renewed debate over the question whether public servants in certain critical positions should be permitted to engage in collective bargaining—as a matter of public policy and of law. As of now, TSA employees are represented by the American Federation of Government Employees (AFGE) with limited collective-bargaining rights.  But this, of course, could change with a change in administration.

By contrast, as Slater points out, the proposed the Public Safety Employer-Employee Cooperation Act of 2009 would have granted collective-bargaining rights to public safety officers employed by state or local governments. The proposed bill is “a substantial departure from traditional public-sector labor law. The federal government has never attempted to grant collective bargaining rights to large groups of state and local government employees.” Perhaps for this reason, if passed, this bill is likely to come under constitutional challenge. Slater acknowledges that the bill is unlikely to pass, but if it did pass (and survived constitutional challenge), “this Act could be seen as a bold assertion of the importance of collective bargaining rights.”

Slater lastly explores the meaning of collective bargaining by focusing on the right to bargain collectively under Missouri’s constitution, which provides that “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” Although originally construed as not applying to public employees, the Missouri Supreme Court recently reversed its 60-year old decision, holding that the constitutional provision does, in fact, apply to public workers. Lower courts are now exploring what it means for public workers to have such a right.  Does the principle of exclusive representation apply? Apparently not. Does a system devised by the employer requiring employees in each school to select representatives and permitting the largest union to select a representative, a process the court called “collaborative bargaining,” meet the requirements of collective bargaining? The court held that it did not. These cases, Slater explains, allows us to re-explore the concept of collective bargaining. Is this concept some sort of platonic ideal or is it ever-evolving to meet the challenges and circumstances of the times?

In such interesting times, perhaps the answer to that question is  . . .  interesting.


Implicit Bias: Moving from Theory to the Courthouse

Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin, Implicit Bias in the Courtroom59 UCLA L. Rev. 1124 (2012).

Having a total of ten authors for one article would make this rather exceptional even without regard to the topic. That these authors participated together in a symposium on implicit bias is not a surprise. But what is unusual, if not exactly surprising, is that they together wrote this one article. This is not the typical scenario for the papers delivered at a conference. The ten include legal academics, scientists, researchers, and a sitting federal judge. Six are law professors, though two of them hold joint appointments. One is a research consultant for the National Center for State Courts, two are psychology professors and one is a federal district court judge. They all come to the study of implicit bias from their respective points of perspective but the article is a fully integrated article.

The question the article begins to answer is: What, if anything, should we do about implicit bias in the courtroom? The scientific literature on implicit bias and the role implicit bias might play has been the subject of considerable legal literature. Part I provides a clear, straightforward introduction to the science involved in understanding that implicit bias exists, what it is, and how it works. The article defines implicit attitudes and stereotypes as biases “not consciously accessible through introspection.” Accordingly, their impact on a person’s decision-making and behaviors does not depend on that person’s awareness of possessing these attitudes or stereotypes. Consequently, they can function automatically, including in ways that the person would not endorse as appropriate if he or she did have conscious awareness. If you remember, Ross Perot in the 1992 Presidential campaign gave a vivid example of implicit bias that gets disclosed unintentionally. While speaking at an NAACP meeting,  Perot addressed his audience several times as “you people” or “your people.” Especially since the topic of the speech was crime and illegal drugs, many perceived Perot as expressing a stereotypical view of African Americans as being identified with crime and drugs. He had no incentive to be avowedly racist and there is no indication that he was conscious of the obvious inference listeners drew based on the language he used.

Part I develops a full description of the key research upon which the concept of implicit bias has been based — the Implicit Association Test (IAT). The test shows those who take it pairings of pictures of either whites or African Americans and pictures presenting either negative and positive images. The test measures the time differences that test-takers take to deal with these different combinations of pictures.  Thousands of people have taken the test (if you haven’t, you can find it at https://implicit.harvard.edu/implicit). The huge amount of data that has been generated has proven to the satisfaction of the researchers that implicit bias is pervasive, large in magnitude, disassociated from explicit biases, and predictive of certain real-world behavior.  A meta-analysis of these studies found that implicit attitudes such as discrimination against African Americans predict certain behaviors better than measures of explicit bias.  In order to defuse emotionally loaded responses, the article uses examples, such as the presence or absence of implicit biases of a vegetarian.

Part II then traces two “trajectories,” with the first treating implicit bias in criminal trials and the second, which this post will deal with, giving “an empirical account of how implicit bias may potentially influence” employment discrimination litigation. First, in dealing with implicit discrimination in discrimination cases, the article digs much more deeply into the studies that take different approaches and show different facets of the existence and extent of implicit bias in the employment setting. Tester studies in which applications that are identical except for race or gender are sent to employers. The results reveal that, in 20 to 40 percent of the cases, the employers treat the subordinated group worse than the privileged one in terms of who get callbacks. Field experiments with actual applicants confirm that bias. Further studies correlate discriminatory employment evaluations with implicit bias. The next step is to show that additional studies have demonstrated that the mechanism by which this discrimination occurs is that evaluators engage in motivated reasoning – changing merit criteria “on the fly” to the advantage of the privileged group applicant but without realizing that the criteria have been changed, much less that they have been changed in order to advantage the privileged person.  In sum, these varied studies demonstrate that implicit motivations influence behavior which is then rationalized after the fact to avoid recognition that bias is at play.

In the next step of Part II the article describes how implicit bias operates at several steps in the litigation of discrimination cases. After Twombly and Iqbal, judges are now able to use their “judicial experience and common sense” to evaluate the “plausibility” of plaintiff’s claim of discrimination in the context of Rule 12(b)(6) motions to dismiss based on the pleadings. Judges, no less than the rest of us, are subject to the influence of implicit bias, which shapes their experience and common sense. Implicit bias has been shown by numerous studies to be particularly powerful when, as in the situation of a judge deciding a motion to dismiss without the benefit of the parties’ discovery, the decisionmaker lacks “sufficient individuating information.”  The lack of information about the actual case increases the risk that implicit bias will affect the decision. Recent statistical studies show that there has been a significant increase in the dismissal rate of discrimination cases at the pleading stage since Iqbal was decided. That is no surprise, but what these studies also show is that there is a significantly higher increase in the rate for discrimination cases compared with other types of civil litigation. Based on experiments replicating jury trials, studies show that juries are, like judges, likely to engage in motivated reasoning as well as “performance preference.” “Performance preference” involves the risk that implicit bias influences how the jurors evaluate the judges, attorneys and witnesses in the trial.

Part III – entitled “Interventions” – describes some strategies that can be used to decrease implicit bias in the courtroom. This is a daunting challenge since, by definition, we are not consciously aware of these biases that nevertheless influence our behavior. The article describes studies that show that increasing diversity, “the direct contact with countertypical people,” decreases the operation of implicit bias. Even increasing the manifestation of diversity in the courts through the kinds of pictures, posters, etc., that are on display can help.  Judges present a special challenge since a survey showed that 97 percent of those surveyed thought they were in the top quarter in avoiding “racial prejudice in decisionmaking.” Just as all the children can’t be above average, all the judges can’t be in the top 20 percent in terms of their objectivity. This sense of certainty that one is not subject to bias is particularly dangerous since studies demonstrate that, when someone “believes himself to be objective, such belief licenses him to act on his biases.” So, judges as a group are likely to be particularly vulnerable to implicit bias. A way to increase motivation to be fair and to avoid letting implicit bias influence decisionmaking is to increase a person’s scientific knowledge about implicit bias.  That can be done through individual study as well as part of the organized judicial education that helps train judges. As part of that education, judges can learn how to engage “in effortful, deliberative processing,” which includes reducing the level of one’s emotional state of mind when making decisions. Judges can also learn to “count,” or to consciously keep track of the number of situations in which implicit bias could play a role and to analyze whether or not implicit bias could have crept into the decisionmaking process.

A point not made in the article is that plaintiffs’ counsel might find it useful to include in their discrimination complaints significant information about implicit bias to help a judge minimize her implicit bias when deciding motions to dismiss under the new Iqbal plausibility test. In fact, I am surprised not to have seen a group that represents discrimination plaintiffs, such as the National Employment Lawyers Association, provide clear, straightforward factual information about the operation of implicit bias to be used to bolster plausibility arguments in motions to dismiss. Perhaps, this article can provide the framework for plaintiffs’ lawyers to educate judges about the plausibility of bias and of discrimination.

The article makes an interesting point by showing that studies do not support giving prospective jurors individualized screening tests such as the IAT. While the test-retest reliability of the IAT as to people generally is very well established, it is less so at the level of the individual test-takers. So, that leaves jury diversity and the education of jurors about implicit bias as the primary tools to try to debias the operation of the jury system.

This article takes us another step down the road toward integrating what science has shown us about implicit bias into law. There are more steps to be taken, including attempts to be able to figure out how IAT tests can be shown to be reliable at the individual level. Even without taking that step, articles such as this one are building a context for a fundamental legal question that has yet to be definitively answered. That question is whether action based on implicit bias is intentional discrimination for purposes of deciding disparate treatment discrimination cases. In the 19th Century, signs on the doors of Boston employers that “Irish need not apply,” were explicitly biased. Since then we have learned that bias influences the behavior of all of us in much less obvious ways. Yet its influence is discrimination.

Four of the authors of this article, along with many other experts in the field, also participated in a conference sponsored by the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School on June 14, just before this article was published. That conference launched a book of edited essays about implicit bias and the law entitled Implicit Racial Bias Across the Law. So, the academic study of the impact of implicit bias on the law continues to grow, expand, and increase in credibility. Knowledge is necessary, but so is action.