gavelSo 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.

In the five plus years of this blog, it’s rare to find topics that I haven’t covered, at least minimally.

One such topic, though, is the notion of “mitigation of damages”.  It is a concept found in lots of cases, but it has particular importance in employment discrimination cases.

An employee who claims he (or she) was wrongfully terminated because of his age, for example, cannot sit by and collect damages if he wins an age discrimination lawsuit. Rather, he must try to mitigate his damages, typically by conducting a job search to find comparable work.

Put another way, if a employee is laid off on a Monday, but is hired by a new employer on Tuesday for the same salary, the employee probably hasn’t suffered any real damages.

Last week, a federal court in Connecticut was confronted with the question of whether an expert can testify about a terminated employee’s failed job search and to what extent.

In Castelluccio v. IBM (download here), the employer wanted an expert to testify that the terminated employee had “not conducted a diligent pursuit of full-time, permanent employment opportunities to find a job.”

The court ruled, in essence, not so fast.  The expert cannot testify that the employee did not conduct a “diligent” job search because that is an “ultimate question in this case which is for the jury to decide.” He is also precluded from testifying that the plaintiff should have found comparable employment within 9-18 months, because it is not “reliable.”

But the expert can testify about the job search itself, including the “nature and degree of efforts which typify an average or successful job search…and how [the plaintiff’s[ efforts compare to what are typical — or successful efforts.”

Thus, testimony that compares the plaintiff’s job search efforts to the industry standard is permissible, so long as it doesn’t go beyond that.

What is also interesting about the case is that another federal court 12 years earlier, had placed the same limits on the testimony by the same expert.

For employers, the case is a useful example of what type of evidence is required of a terminated employee to mitigate his damages, and what type of testimony can be elicited by an expert to rebut that evidence.

At a minimum, employers faced with a termination claim should consider whether mitigation of damages will be a viable defense that may cut off damages at some point.