Life After Pippen
10:30 a.m.- 11:00 a.m.
Presented byThomas Newkirk
Newkirk Zwagerman PLC515 E. Locust Suite 300
Des Moines, Iowa 50309
Melissa HassoSherinian & Hasso Law Firm
3737 Woodland Ave., Suite 630West Des Moines, Iowa 50266
Friday, November 14, 2014
2014 Labor and Employment Seminar
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Life After Pippen: Interpreting the Iowa Civil Rights Act and the Impact of
Implicit Bias in Employment Law Thomas Newkirk [email protected] Newkirk Zwagerman PLC 515 E. Locust Suite 300 Des Moines, Iowa 50309 Melissa Hasso [email protected] Sherinian & Hasso Law Firm 3737 Woodland Ave., Suite 630 West Des Moines, Iowa 50266
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I. Pippen v. State: A Brief Summary
Pippen v. State, -- N.W.2d -- (Iowa 2014), 2014 WL 3537028, involves a class action
disparate impact1 race discrimination case. Fourteen African American plaintiffs brought a
lawsuit under both Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act,
alleging that the State of Iowa engaged in practices that resulted in a failure to maintain a
diverse, nondiscriminatory workplace through its merit employment system. They contended
that because of the State’s failure to enforce certain statutory and regulatory policies, a
disproportionate number of African Americans were denied an equal opportunity for
employment. They claimed that this was the natural, unintended consequence of the State’s
failure to follow rules designed to ensure equal opportunity in the workplace, and was not done
intentionally or with malice. The plaintiffs also alleged that the State was put on notice that its
hiring practices imposed barriers to employment opportunities for African Americans through
study reports of its employment practices in late 2006 or early 2007. As part of their evidence,
the plaintiffs presented testimony from two psychology professors regarding implicit bias,
stereotyping and prejudice and their effects on decision-making,
On April 17, 2012, the district court filed its decision in favor of the State. It held that (1)
the plaintiffs did not provide legal authority for concluding that a failure to follow statutory or
regulatory responsibilities, or internal policies, is a particular employment practice; (2) the
plaintiffs had not carried their burden of “demonstrating the inseparability of the employment
1 “Disparate impact” and “disparate treatment” are the two alternative theories of liability under civil rights laws for discrimination in employment. Pippen, at *6, citing Int’l Bhd. of Teamsters v. United States, 431 U.S.324, 357 (1977). “In a disparate impact case, what matters is not the subjective motivation of the employer, but the effects of an employment practice.” Id., citing Connecticut v. Teal, 457 U.S. 440, 447 n.8 (1982). For an example of the disparate impact theory under the ICRA, see HyVee Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512 (Iowa 1990).
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system components for analytical purposes;” and (3) the plaintiffs failed to prove the causation
element of their disparate impact claim.
In its decision affirming the district court’s decision, the Iowa Supreme Court discusses at
length the use and methodology of statistical data in proving disparate impact discrimination.
The summary below, however, focuses on the broader implications of Pippen – namely, (1) the
distinctions between Iowa and federal civil rights law, and (2) the recognized validity of
cognitive and implicit bias in discriminatory employment decisions. The opinion provides a
detailed review of the historical development of state and federal civil rights laws, disparate
impact theory, and the statutory and interpretive distinctions between the Iowa Civil Rights Act
and comparable federal laws. Importantly, the opinion confirms Iowa’s commitment to forging
its own broad path on civil rights issues, independent from federal law and clearly from laws that
are frequently narrowly constructed by federal courts, and the fact that implicit bias and
cognitive bias theories may well be central to modern employment discrimination cases.
II. Iowa is Not Bound by Federal Precedent.
A. Iowa courts are to interpret the ICRA broadly to effectuate the statute’s express purpose.
In litigating civil rights cases under the ICRA, plaintiffs and defendants alike commonly
cite to federal case law interpreting federal civil rights laws in support of their respective
positions. Under Pippen, this approach may no longer have its desired effect. The Pippen Court
reaffirmed Iowa’s independence from interpretations of federal civil rights laws in interpreting
the Iowa Civil Rights Act (“ICRA”). In addressing this issue, the Court pointed out that the
ICRA was enacted only one year after Title VII, well before any cases interpreting the federal
statute. Id. at 28. It also noted statutory differences between them: “For instance, the Iowa
legislature has declared that the ICRA ‘shall be construed broadly to effectuate its purposes.’”
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Id. at 26, citing Iowa Code § 216.18(1). “There is no similar language in the Federal Civil
Rights Act and, indeed, the case can be made that the recent cases of the United States Supreme
Court . . . tend to construe the federal counterpart narrowly.”2 Id. The Court continued:
An Iowa court faced with competing legal interpretations of the Iowa Civil Rights Act must keep in mind the legislative direction of broadly interpreting the Act when choosing among plausible legal alternatives. Any state court decision that adopts a narrow construction of Title VII by the United States Supreme Court without confronting the requirement in Iowa law that the Iowa Civil Rights Act be interpreted broadly misses an essential difference in state and federal civil rights laws.
Pippen v. State, --N.W.2d --, 2014 WL 3537028, at *26 (emphasis added). The Court had made
the same point less than a month earlier, with an equally extensive analysis of the issue, in
Goodpaster v. Schwan’s Home Serv. Inc, 849 N.W.2d 1 (Iowa 2014):
Just as “we are not bound by federal cases construing a federal statute when we are called upon to construe our own Civil Rights Act,” Loras Coll. v. Iowa Civil Rights Comm'n, 285 N.W.2d 143, 147 (Iowa 1979), we are not bound by the language of federal statutes when interpreting language of the ICRA.
Id. at 9 (citing DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009) (“[We must be
mindful not to substitute ‘the language of the federal statutes for the clear words of the [ICRA].’”
(quoting Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989))).
“The bottom line,” the Pippen court concluded, “it that the Iowa Civil Rights Act is a
source of law independent of the Federal Civil Rights Act.” Pippen, WL 3537028 at *28. “. . .
[W]e must be mindful of the legislative direction that the Act be broadly interpreted to effectuate
its purposes.” Id., citing Iowa Code § 216.18(1). In short, the Iowa Supreme Court has made it
2 In Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 10 (Iowa 2014), the Court noted another key statutory difference: “[U]nlike federal law, where civil rights protections against employment discrimination are scattered into three statutes – the Civil Rights Act of 1964, as amended, 24 U.S.C. § 2000e-2, the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623(a), and the ADA, 42 U.S.C. § 12112 – Iowa has one unified statute, Iowa Code Chapter 216. While numerous fracture in the federal law have developed depending upon the statute involved, no such fractures arise under Iowa law.”
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clear that not only is Iowa not bound by federal law, but will continue to interpret the ICRA
differently and more broadly.
B. Federal cases used for guidance will be interpreted broadly.
In keeping with the ICRA’s requirement that it be construed broadly, the Pippen Court
warned against adopting narrow interpretations of federal law in deciding Iowa discrimination
cases. Id. at *26. The Court reiterated, with extensive citations to other state court decisions,
that “[f]ederal court decisions under the Federal Civil Rights Act are not binding on state courts,
which are free to consider other persuasive authority and come to independent conclusions.” Id.
After reciting a litany of United States Supreme Court civil rights decision that Congress
subsequently overrode by legislative action,3 the Court concluded that “[t]he frequent narrow
construction of civil rights laws by the United States Supreme Court, followed by congressional
intervention, has been cited as a ground for decreased deference to United States Supreme Court
decisions by state courts.” Id. at *27. Thus, while Iowa courts may continue to look to federal
case law for guidance in interpreting the ICRA, they must not automatically adopt restrictive
interpretations common to federal courts. Iowa courts must instead interpret them broadly to
comply with the ICRA. Id. at 28, citing Iowa Code § 216.18(1).
C. Implications for Employment Law Cases
3 General Electric Co. v. Gilbert, 429 U.S. 125 (1976) (holding discrimination based on pregnancy was not sex discrimination) (superceded by statute, Pregnancy Discrimination Act of 1978, Pub.L. No. 95-555, 92 Stat. 2076); Wards Cove Packing Co. v Antonio, 490 U.S. 642 (1989) (shifting the burden of persuasion of the business necessity issue to plaintiffs and changing the employer’s explanation of disparity from one of business necessity to one of a rational business justification) (superceded by statute, Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(k); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manuf., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (narrowing the definition of who is a “qualified individual with a disability” by holding that if an individual is able to fully mitigate the effects of a disability, she is not protected by the ADA) (superceded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, § 2(b)(2)-(5), 122 Stat. 3553 (2008); and Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (limiting time to sue for pay discrimination to 180 days after the discriminatory pay decision, even if the employee had no reason to believe the decision was discriminatory at the time) (superceded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (2009).
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In practice, neither plaintiffs nor defendants should altogether abandon citing to
interpretations of federal law when Iowa case law precedent does not address the issue under
discussion. To be sure, federal and state civil rights laws share the same goal – the elimination
of discrimination in all forms. But attorneys for both sides should have a clear understanding of
the important distinctions between the ICRA and federal civil rights statutes, and how those
distinctions may affect the outcome of cases brought under the ICRA.
The Pippen Court has made it clear that Iowa courts should not rely on narrow
interpretations of federal law in cases arising under the ICRA. Therefore, attorneys should abide
by the same rule. Additionally, the Pippen Court references the importance of looking to other
states’ case law in interpreting the ICRA. Id. at *26. Counsel should follow the Court’s lead by
mining other state jurisdictions for persuasive decisions and use them to advance their positions.
Such decisions carry just as much authority for Iowa courts as federal case law, and perhaps
more, depending on the language and history of the state civil rights law at issue. Above all,
defense and plaintiffs’ counsel alike should be prepared to argue whether Iowa should or should
not forge its own path, rather than deferring to comparable federal decisions, in deciding novel
issues under the ICRA.
III. Recognizing and Correcting Implicit Bias in Employment Decisions
A. What is implicit bias?
The progress of our approach to ending discrimination is an evolution. We have moved
away from the days of focusing on words like “nigger” or “bitch” and toward the inevitable
future recognizing that 95% of the harm is generated by action powered by bias, not words. The
Pippen case was intended to, in part, advance this evolution to move past the either/or, or
polarized view of the world in discrimination cases. It is not “either” one is a racist, “or” one is
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not. It is not “either” there is disparate impact from a policy “or” there is so-called willful
discrimination. Most of the discrimination lies between those extremes. The Pippen case moved
that ball forward in a big way and it is important to keep moving forward. This matters to the
employee who seeks to be free from discrimination and it is important for the employer that
seeks to ensure a work environment free from discrimination. It is important to an employer
who does not care about equality so long as they do not get sued. This is why everyone, plaintiff
and defense counsel, would be well served to educate themselves.
The next phase of our evolution is therefore understanding what bias is, how it works,
and how it affects decisions. That is a highly complex analysis. Right now, implicit bias is the
popular term. However, implicit bias is not the be-all-end-all. It is simply a scientific term
reflecting bias that we can finally measure. It is founded upon the Implicit Association Test
invented by Tony Greenwald and now peer reviewed about 500 times that measures the bias in
the back of our minds that we all know is there, but often deny.4 The results from this test
neither suggest that someone possessed of implicit bias is racist or sexist, nor do—they suggest
they are not racist or sexist. The key is to understand that the harm from a person who only has
implicit (subconscious) negative associations with race can be exactly the same as someone who
recently joined the KKK. This is why it is not relevant to discuss the degree of motives if the
goal is to reduce the harm from bias in any shape, form or degree.
B. Using implicit bias/cognitive bias concepts in litigation
4 To fully understand how pervasive implicit biases are, we encourage everyone to take the Harvard Implicit Association Test. There are different tests including race and gender and, for many, it will take viewing the results of these tests to understand how everyone is affected by subconscious biases. https://implicit.harvard.edu/implicit/takeatest.html
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In Pippen, both the majority opinion and the concurrence affirmed the plaintiffs’
argument that implicit (racial) biases are pervasive and can affect decision-making in
employment. As Justice Appel explained, “[a]lthough cases of blatant racism still exist, most
discrimination is more subtle and difficult to demonstrate.” Id. at *6. Judicial recognition of
these subtle forms of racism is a relatively new frontier in employment discrimination cases.
However, while Pippen was 10 years ahead of the curve in some ways, the Pippen opinion
reminds us that in Watson v. Fort Worth Bank & Trust, Justice O'Connor acknowledged that
even in cases “without overt discriminatory intent, the problem of subconscious stereotypes and
prejudices would remain.” Id. at *8 (citing Watson, 487 U.S. 977, 990 (1988)). Justice Appel
elaborated that:
“[w]hile the days of “Whites Only Need Apply” signage are fortunately long passed, institutional barriers to equality of economic opportunity remain intractable. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L.Rev. 458, 459–60 (2001) (“Smoking guns—the sign on the door that ‘Irish need not apply’ or the rejection explained by the comment that ‘this is no job for a woman’—are largely things of the past.... Cognitive bias, structures of decision making, and patterns of interaction have replaced deliberate racism and sexism as the frontier of much continued inequality.”); see also generally Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56 Ala. L.Rev. 741 (2005); Audrey J. Lee, Note, Unconscious Bias Theory in Employment Discrimination Litigation, 40 Harv. C.R.-C.L. L.Rev. 481 (2005). The remedies afforded under civil rights legislation disparate impact analysis are a critical component in eliminating barriers or headwinds faced by African Americans in the employment marketplace.” Id. at *5.
In the concurrence, Justice Waterman validated the use of implicit bias in establishing a
nexus between decision-making and employment statistics in disparate impact cases. Id. at *31
(Waterman, J., concurring specially) (“Implicit-bias theory helps explain how statistical
disparities can result without intentional discrimination: individuals act on implicit biases
without recognizing they are doing so.”).
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Ultimately, the class claim was not successful but the concurrence restated that “the
plaintiffs credibly demonstrated—implicit bias in multiple State hiring decisions during the
relevant time period…” Pippen is at the very least a foundational case for litigating with implicit
bias theory.
C. Unified Theory of Bias5 and The Practice of Employment Law
The key to understanding the future of employment law or implicit bias or other cognitive
biases is to understand decision-making and how bias influences, affects and alters decision-
making. Most of the law prior to Pippen has been dealing with a mere fact of a word or phrase
or a policy rather than addressing the role that decision-making plays in generating harm and
understanding how bias, of any type or degree, affects decisions that lead to harm.
In simplest terms, we approached the Pippen case by looking at the true nature and extent
of bias, and tied it to the understanding of how bias is expressed—consciously or
unconsciously—in the decision-making by the “in” group against the “out” group. We moved
away from the polarized view of discrimination, and tried to bridge the gap between a claim of
adverse impact and treatment. We explored and tried to expose the disease lying within the vast
gulf that exists between the mythical concept of zero bias causing adverse impact and treatment
claims founded upon bias tied to animus. The Unified Theory of Bias is the result of the work
leading up to that case and the Pippen case is the child of that theory.
The Unified Theory of Bias means that we combine the advancement of science on the
extent (meaning how many people are at risk of expressing negative bias) and nature (meaning
its manner of operation and power) of bias, and apply that science it to a modern understanding
of human decision-making within the framework of the laws already on the books. It also means
that we understand the limitations on that science and go beyond it by applying what we know 5 © Thomas Newkirk 2010
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from experience and real world studies about how human beings make decisions and how
negative impact remains on certain groups. Bias, regardless of its form, is a barrier to equality.
The Iowa Civil Rights Act, and Title VII, which have been in place for 50 years, were intended
to remove all barriers to equality, not just some of them. What has been missing over the last 25
of those 50 years from within the conventional interpretation of the law and within our efforts to
prove discrimination claims has been a clear understanding of the nature and extent of bias and
the impact of bias upon decision-making. The Unified Theory of Bias is a 15 year effort (and
counting) to combine an understanding of the important concepts, tie them to science, maintain a
practical approach and ensure that they fit within the law. However, before one can even
understand it or where it is going, one must break down how you normally think about
discrimination and understand what you are up against.
Do you all recall the tsunami in Japan? The world watched as the surge of water ripped
through the concrete sea wall leaving death and destruction in its path. That sea wall was built
with some appreciation, but without a true understanding of the nature and power of a tsunami, a
wave of water that was only a few meters high. The wave actually did not appear that strong as it
was not 100 feet high; however, the weight or power of the smaller wave of water stretching
miles back from shore is what destroyed a reinforced concrete barrier as if it were a pile of sand.
The nature of water is to flow regardless of what is in its way—it surrounds, infiltrates and/or
carries away those things that block its path. The same is true of bias. Bias is also more
extensive and more powerful than we think and we cannot do anything to stop it without first
understanding it. The barriers that we think will create equal opportunity wash away at the first
wave of bias. If we think another wave is not coming, or may not be similar in power, we will be
mistaken.
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In formulating and employing the Unified Theory of Bias we approach bias like engineers
looking at Japan after the tsunami. This means that the issue of bias, and its effect and threat, is
no longer a theoretical question, but now represents a challenge to mitigate and set up barriers to
that which is known to exist and cause harm. The choice now is, do we continue to live in denial
of that power, or do we simply give up knowing the bias cannot be managed? Or do we choose a
third option to take what we have learned and do our best to at least control that power and/or
create methods to avoid the harm from that power?
These issues may appear esoteric, but they represent the core of how you can identify and
explain how negative and positive biases affect your clients and how to manage the case and the
reactions of employers and the Courts to these issues. Simply continuing to argue stereotypes or
pretext, or to focus on the presence of words and phrases or so-called treatment of similarly
situated persons, is no longer sufficient. This approach is 20 years behind the times.
The Unified Theory of Bias applies the extent of bias within society and its function in
human decision-making to the standards already in the law. There are, at present, five key
principles that combine to form the Unified Theory of Bias:
1. The nature and power of bias 2. The extent of bias 3. The conscious and subconscious influence on decision-making 4. The continuum of awareness 5. Application to the law—framing the impact of bias
The Nature and Power of Bias
The first principle of the Unified Theory of Bias is to properly understand the general
nature of bias. Bias is extensive, liquid and powerful. Bias is like water. Science might refer to
this as the plasticity of bias. However, I use water because it helps us better visualize how bias
flows from a variety of sources and acts differently depending on environment, circumstances
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and obstacles. In simple terms, the power or force of one person’s bias does not mirror another’s.
Further, bias flows around its object in ways reflecting various factors specific to that object.
Bias can flow around one woman differently from another or around one black person differently
from another. For those of you keeping score on the practical applications, bias can flow around
a host of blacks or women, and the evidence will fit perfectly within the reality that they may not
all be similarly situated. This also means that it is perfectly understandable why one black may
be treated well and another treated poorly but discrimination still is the cause.
The force of water can also change depending on whether it is falling from a height or
narrowing with a channel. How it flows around rocks and other objects also depends upon the
characteristics of those objects. The same is true with how bias flows from its source and flows
around the object of the bias. All the same, and despite these variations, we can rationally
predict how water will react to objects in its path or changes in terrain. We can do the same with
bias.
For a practical application, think of the common defensive reaction of, “but we hired a
black,” or “we promoted a woman.” The hiring of one protected class member is entirely
consistent with the theory of bias. That is, if you understand how bias flows from an object,
around its source and how it may be triggered or powered by different events or characteristics.
It may be the type of person (physical characteristics including skin tone, demeanor or perceived
attitude) or bias may be reflected in the fact that the defendant hired only one or maintained them
at a certain level. For example, one might treat an African American who looks and speaks like
Barrack Obama differently than one who looks or speaks like Jesse Jackson. A woman who
exhibits some agentic behavior (more traditionally masculine traits associated with leadership)
may be a bit more likely to be considered for leadership than someone who is “softer,” but will
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be at a much higher risk of having negative stereotypes triggered against them when they act in a
manner that is too far removed from what we expect of women in general - i.e. not nurturing,
not warm etc.
The Extent of Bias
This principle is one of the most difficult principles to accept. The extent of bias varies
greatly depending upon the group in question. For blacks, bias is there in some form (negative
associations) about 75 percent of the time. That means if there are 100 decision-makers in a
room, 75 of them have some negative association with blacks. However, it goes even deeper.
Within that group of decision-makers there are also positive associations with whites that
increase the force and power of negative associations with an out-group. However, while
understanding the extent of bias (meaning the probability that it is in the room during a decision
to some degree) is vital, it is not enough because the nature and power of bias is still a factor.
Regardless of its extent, the power of bias regarding one person or group can be
explained, in part, by the power of other positive or negative associations that increase or
decrease the flow. For example, there are few negative associations with Asians. There are many
negative associations with blacks. There are far more positive associations with whites. There
are some negative associations with older person and some positive associations. Understanding
these variations can help you understand why the applicant flow of blacks seeking jobs with an
employer is low, and yet, why the flow of Asians seeking jobs may even exceed whites.
However, to understand this you have to have a sense of how the bias flows in general and how it
flows around women, compared with blacks, compared with Asians, compared with Hispanics,
and so forth.
The Conscious and Subconscious Influence on Decision-Making
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The third principle of the Unified Theory is understanding that the nature of bias allows
it to be a force that affects human decision-making --one that alters perception, filters
information and affects judgment. It does not remove free will; it simply affects the information
flowing into the mind and thereby becomes part of the foundation for the exercise of free will.
This concept is probably the most important. However, it is dependent upon understanding the
other concepts.
There is increasing scientific support for this. However, it really does not depend upon
experts or social science. It is within our collective common sense to understand that this is what
is going on in the mind. It is possible for an employer to understand this and it is possible for a
jury to understand it as well. For those who need more scientific foundations, various studies
address the issue. See, e.g., A.G. Greenwald, T.A. Poehlman, , E.L. Uhlmann, & M.R. Banaji,
, Understanding and using the Implicit Association Test: III. Metaanalysis of Predictive Validity,
JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY, Vol. 97, 17-41 (2009).
The Continuum of Awareness
The fourth principle of the Unified Theory of Bias is to understand that bias resides on a
continuum of awareness. This is an important concept to break through the understanding that
we either have overt or willful views or no bias, or we only have subconscious bias (meaning
below all awareness and therefore possibly below all responsibility). Imagine a line that
represents a continuum of gradually increasing awareness. The continuum runs from purely
subconscious, to just below the level of awareness, to just above it, to generally aware, to full
awareness and yet with some level of denial, to full knowledge, to recklessness of one’s actions,
to specific intent to harm. It is similar to a person waking from a deep sleep to the point of
rushing adrenaline, with all the stages in between.
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The continuum of awareness is important because it undermines the notion and the
constant battle to define the evidence as fitting within the racist/not racist categories of proof.
This polarized view of discrimination is not only archaic, but wrong. However, this polarized
view of discrimination is what has fueled the law, summary judgment motions and the general
approach to the practice of employment law for 45 years. Let it go. There is still a massive gap
where most of the discrimination lies and we continue to ignore it. The ICRA and Title VII
should prohibit adverse employment action tied to bias that lies between those extremes. The
Unified Theory of Bias is intended to shine a bright light on that gray area.
For the present at least, this is the single most important concept to understand. It is what
allows one to apply concepts of implicit, subconscious or hidden bias to the law that still
struggles to accept that its two main theories (impact and treatment) fail to catch about 85% of
the discrimination out there. The idea of a continuum of awareness means that the operation of
bias is neither entirely willful nor entirely subconscious.
Bias also always operates to some degree at a subconscious level. That is true even if the
person is a real racist or sexist. However, that does not mean someone is not responsible for
their behavior. This is a difficult concept for many to accept particularly with regard to race so
consider this example. Yes, the cop in the famous photo from 1960 threatening a black man with
an attack dog was clearly a racist, but the operation of the bias within him was also operating at
a subconscious level. As he walked his beat the next day he was more likely to notice a black
man, or become irritated by a black man.
Likewise, the manager in 2011, who may be reasonably well trained and who may
honestly have no overtly racist or even overtly stereotyped views about blacks, has the same
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subconscious bias operating on decision-making as the racist copy. However, that manager has
more awareness of those negative views and their effect than he or she will ever admit.6
Sometimes that bias causes someone to chase to quickly (Zimmerman after Trayvon
Martin) or pull the trigger of a gun hastily (Fergeson policy and Michael Brown). Sometimes
that bias causes someone to write a “3” on the performance evaluation of a black man instead of
a “4.” The problem is that you cannot explain most examples resulting in harm by the racist/not-
racist construct nor by the increasingly outdated theories of pretext, so-called disparate treatment
or disparate impact that focuses on written policies or so-called employer practices.
Viewing awareness as a continuum is simply a much more accurate view of the variations
in bias tied to human awareness. Even if you reject this concept, the important thing to take
away from it is that the exact proof of where the motivation lies along that continuum is
impossible to know for certain, and should be largely irrelevant. We take the evidence of the
presence of implicit bias, knowledge that it can cause harm in decision-making, and we do not
categorize it as only subconscious, racist or sexist. We simply categorize it as a force that, if
unchecked, violates the law intended to remove all barriers to equality.
Application to the Law-- Framing the Impact of Bias
This leads to the fifth principle of the Unified Theory, which is really an extension of the
fourth. This principle recognizes that, at least for now, you cannot win a hidden bias case
without appropriately and convincingly framing the risk and evidence of harm within the
existing laws as they stand today. Even if you understand the nature and power of bias and how
6 There is increasing scientific confirmation of what we all should understand at some level. That is that the mind is constantly switching back and forth between conscious and subconscious processes and awareness. What this means in the real world is that anyone who thinks that implicit bias or other references to cognitive bias can only be part of an “impact” theory is living in a dream world.
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it affects judgment, you must use methods to open the mind of your audience that account for the
power of the bias that surrounds your client.
There perhaps are a number of ways to approach this, but one method is anchor the
reality that subconscious bias is a real, extensive and powerful force against the reality that the
bias may be more willful, may be tied to racism or sexism, or may be accompanied by
stereotypes or some degree of conscious awareness of negative associations with that group. We
do this not to polarize the evidence, but to simply maintain respect for the evidence that bias is
operating subconsciously and is harming human beings regardless of whether the employer is
owned by members of the KKK or the ACLU. You render irrelevant the question of whether the
bias is purely subconscious by forcing the interpretation of the evidence into the middle ground.
For practical purposes, this fifth principle completely alters how you approach everything
from pleadings to settlement, to discovery and trial. It helps you discuss liability without the
assumption of bigotry or blame or shame or guilt, yet without losing a sense of responsibility for
the resulting harm. For defense attorneys, it can help you to more objectively recognize
whether and to what degree bias may have impacted employment decisions, and the associated
financial risks, while protecting clients from the inflammatory label of “racist.” Most
importantly, recognition of the very real risks of biased decision-making can stop discriminatory
decisions from occurring in the first place
D. Using Understanding of Implicit/Cognitive Bias Concepts to Reduce Discrimination
We all should have a goal of reducing discrimination. While many of us make a living as
a result of the effects of discrimination (plaintiff and defense), certainly one goal of responsible
plaintiff firms should be to encourage or even design methods to reduce actual discrimination.
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Similarly, a goal of a responsible defense firm should be to work with employer clients to reduce
discrimination because that also reduces litigation risk.
To design barriers to bias, one must first understand it and the forum in which it operates,
i.e., the human mind. One must generally understand how it moves and flows around certain
groups compared to others. One must understand how one biased judgment can build or connect
with another, both in the mind and within the minds of others.
Understanding bias is not enough. What approach should we take to setting up processes
that run interference with the operation of bias -- conscious, subconscious, intentional,
unintentional, willful, reckless, racist or sexist? Can we design protections that render the
motive or source of bias almost irrelevant? This does not mean there cannot be a plan or
conspiracy of sufficient force to overcome any protection, but we must recognize that we are
currently failing to protect at least some groups from discrimination. It is imperative that we
take steps to reduce the effect of bias as a whole, while recognizing that there will always be
some instances of biased decision-making that will slip through the defenses.
Decision-Point Theory7
One approach an employer can take to designing real remedies is Decision-Point Theory.
While this is not the only way to break down bias, but it is the start of the attack on the biggest
source of discrimination: the operation of subconscious processes that favor and disfavor certain
groups, regardless of the degree or level of consciousness also associated with bias. Developing
this process is tied to the practical realities of what an employer can do to reduce the risk of
discriminatory decision-making, given the systems already in place. While in reality one cannot
completely stop bias, one can interfere with it and reduce it, thereby opening up more
opportunities for individuals most likely to be negatively impacted by bias. This path to 7 © Thomas Newkirk 2010
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minimizing discrimination is tied to practical limitations, reality, and what society might be
willing to accept.
Decision-Point Theory requires that an employer first identify at-risk decision-points that
are the most powerful in either permitting or denying someone equal opportunity. In theory,
there can be thousands of decision-points. We take a practical approach and focus fewer than 20
at most, and ideally fewer than 10. For example, at-risk decision- points might include
decisions regarding recruitment, hiring, pay, discipline/termination, promotion, or performance
review stages.
At each decision-point, an employer would set up a barrier of protection. It would
validate decisions, keep data to permit it to examine those decisions, and use education,
information and awareness around each decision-point. It would keep data that would permit it to
see how judgments are being made tied to qualifications on race, gender, age, etc. It would train
employees to be aware of bias as a risk and their own apathy toward permitting the power of bias
in others. It would do implicit bias testing to identify possible bias toward certain groups. It
would require documentation or confirmation of decisions to provide pre-decision
accountability. It would make everyone aware that the company was actively monitoring,
testing, training, and ensuring awareness and accountability behind the scenes.
The employer would replace diversity training or broad awareness of potential problems
with focused training on the nature and extent of bias, and would tie that training to specific
decision- points. In short, the employer would not train people to think about diversity in
general. Rather, it would train managers to think about bias, protect against it, and to have
oversight and accountability for every step of the decision-making process. The employer
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would monitor and test to provide the feedback regarding potentially biased decision-making so
that it could correct problems and prevent them going forward.
The key elements of a Bias Resistant Decision-Making Process© are (1) training on
decisions- points and the reality of bias as a risk; (2) pre- and post-decision accountability, and
statistical monitoring, and (3) training, and awareness based on testing. Each of these overlap
the other. The goal is not to eliminate bias, but to protect decisions, thereby protecting the
employer’s right to make subjective decisions about employees by reducing bias as a risk.
