So yesterday, I said that while the topic of implicit bias was important to understand, I indicated that it was far from settled in the legal context.
One recent case demonstrates why.
The plaintiffs in an age discrimination case in Pittsburgh attempted to introduce testimony from Dr. Anthony G. Greenwald, who has developed the “Implicit Association Test” or IAT. The plaintiffs wanted Dr. Greenwald to be able to testify about processes that function outside of conscious awareness.
The judge, however, rejected the testimony in part because Dr. Greenwald did not visit the employer or speak with any current or former empoyees or subject any of those individuals (manager or employees) to his “self-invented IAT”. Therefore, the court found that there was insufficient facts and data to base his opinion in this case.
The case, Karlo v. Pittsburgh Glass Works, is an important one because it shows that just because someone’s research may be credible, it’s the application of that research to a particular situation that can (and perhaps should) be called into question.
However, the court in Karlo was not persuaded that the research is credible either:
The Court also finds that Dr. Greenwald’s methodology is unreliable, to the extent that the IAT informed his analysis and provided a basis for his opinion that most people experience implicit bias. Although taken more than fourteen million times, Dr. Greenwald cannot establish that his publicly available test was taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW. Dr. Greenwald also fails to show that the data is not skewed by those who self-select to participate, without any controls in place to, for example, exclude multiple retakes or account for any external factors on the test-taker. Perhaps to compensate for these shortcomings, Dr. Greenwald explains that his test is widely-used by “[m]any social cognition experts as a method in their own research” and that “[t]here exists near unanimous agreement among social psychologists as to the validity of the IAT as a method for implicit measurement of attitudes and stereotypes.” Be that as it may, the IAT still says nothing about those who work(ed) at PGW.
And it’s that last sentence that is critical. It is all fine to conclude that implicit bias may exist in society, but the court was cautious about applying it to the employer in this case.
But lest employees think that it can fix this testimony for use in other discrimination cases, the court said it had serious concerns about that too. (I’ve removed the cites for easier reading).
One final point bears mentioning: the Court doubts that Dr. Greenwald’s testimony regarding implicit bias is even relevant in deciding ADEA disparate impact or disparate treatment claims, which are analytically distinct from each other. Where, as here, a plaintiff asserts a disparate treatment claim, he or she must “prove that intentional discrimination occurred at th[e] particular [employer], not just that gender stereotyping or intentional discrimination is prevalent in the world.” Moreover, disparate treatment claims require proof of a discriminatory motive, which seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive. Accordingly, the Court finds that Dr. Greenwald’s opinion does not meet the requirements of Rule 702, and therefore, it will bar his testimony at the trial of this action.
So what does the future hold for implicit bias in legal cases? That remains to be seen. The American Bar Association is putting on a presentation about implicit bias next week if you’d like more information.
For now, employers should continue to be aware of this issue and not dismiss it out of hand simply because the courts have yet to adopt it fully. Something tells me we are still figuring out where implicit bias fits in the legal analysis of discrimination claims.