Implicit Bias and Employment Discrimination: Avoiding Liabilities in the Hiring and Employee Review Process

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Implicit Bias and Employment Discrimination: Avoiding Liabilities in the Hiring and Employee Review Process WEDNESDAY, OCTOBER 24, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Kami M. Hoskins, Partner, Gordon Rees Scully Mansukhani, Phoenix Jill S. Vorobiev, Partner, Reed Smith, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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5 Implicit Bias and Employment Discrimination: Avoiding Liabilities in the Hiring and Employee Review Process Presented by: Kami M. Hoskins Partner Gordon Rees Scully Mansukhani, LLP Jill S. Vorobiev Partner Reed Smith, LLP 5

6 Preview What is Implicit Bias? How does Implicit Bias impact the workplace and cause potential liabilities? Is Implicit Bias expert testimony admissible? How can employers identify and minimize Implicit Bias? Questions? 6

7 Defining Implicit Bias Understanding the Theory

8 The Theorists Social psychologists Dr. Anthony Greenwald and Dr. Mahzarin Banaji first defined implicit bias in Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, American Psychological Review, 1995, Vol. 102, No. 1, 4-27 (1995). They also wrote the book Blind Spot on their theory of implicit bias. 8

9 Defining Implicit Bias The attitudes or stereotypes that affect our understanding, actions, and decisions about people in an unconscious manner. Formed from direct and indirect messages. Activated involuntarily, without awareness or conscious control. 9

10 Defining Implicit Bias Can either be positive or negative. Do not always align with our openly held beliefs. Everyone is susceptible. State of the Science: Implicit Bias Review 2016, Kirwan Institute for the Study of Race & Ethnicity 10

11 Defining Implicit Bias Implicit bias is a combination of 2 ingredients: 1. Brain Function More repetitions of a message we receive, the stronger the neural pathway becomes to reinforce it. We tend to rely on biases in times of increased stress. 11

12 Red Yellow Blue Green Green Yellow Blue Blue Green Yellow Red Green Blue Red

13 Defining Implicit Bias Implicit bias is a combination of 2 ingredients:* 2. Culture Drives the connection between the person and meaning of the message we attribute to the person. Example: What does a good pilot look like? Example: What does a good lawyer look like? *Dr. Mahzarin R. Banaji, NPR Morning Edition, Oct. 17,

14 Explicit Bias Expressed directly Aware of bias Operates consciously Implicit Bias Expressed indirectly Unaware of bias Operates sub-consciously Example: I like Whites more than Latinos. Example: Not assigning new case to Latino attorney. Unconscious (Implicit) Bias and Health Disparities: Where Do We Go From Here? Center for Social Inclusion

15 Defining Implicit Bias The Legal Memo Experiment The white Thomas Meyer: Fewer errors More positive feedback Higher overall rating 15

16 Defining Implicit Bias But I m Not Biased! Visualize the 5 people closest to you. What are their races? Genders? Sexual Orientations? Religions? Who have you dated? Who are your clients? With whom do you work most closely? 16

17 Defining Implicit Bias Test Yourself Take the Implicit Association Test (IAT): 17

18 Implicit Bias in Employment Law Expert Testimony Rejected

19 Background: Cases Examined Disparate Impact Disparate Treatment State Law Federal Law 19

20 Expert Testimony Rejected Haynes v. Indiana University (7th Cir. 2018) Title VII and Section 1981 denial of tenure race. Plaintiff offered Dr. Anthony Greenwald as expert on implicit bias. Greenwald s report addresses the possibility of implicit racial bias but unintentional discrimination is not cognizable under (emphasis in original) 20

21 Expert Testimony Rejected White v. BNSF Railway Company (9th Cir. 2018) Disparate treatment discrimination claims under state and federal law. White never explained how testimony regarding implicit bias would be helpful to the jury in a disparate treatment case requiring evidence of intentional discrimination. (citing FRE 702). Unpublished decision. 21

22 Expert Testimony Rejected Johnson v. Seattle Public Utilities (Wash. Ct. App. May 14, 2018) Race and age disparate treatment discrimination and retaliation claims proceeded to trial. Dr. Greenwald s testimony on implicit bias was properly excluded where it only consisted of generalized opinions that are not tied to the specific facts of this case. 22

23 Expert Testimony Rejected Fields v. Libbey Glass, Inc. (W.D. La. 2008) Disparate treatment race. Plaintiff s implicit bias expert only read SHRM literature, results from the IAT test, and an article published in HR News. Expert concluded employer s promotion decision likely displayed implicit bias. Court excluded trial testimony under FRE 702 as not reliable. 23

24 Expert Testimony Rejected Pippen v. State of Iowa (Iowa Dist. Ct. 2012) Collective Action/Disparate impact race. Plaintiff offered Dr. Anthony Greenwald as expert. He testified implicit bias may have affected employment decisions, but admitted he did not review the employment decisions in the case. Implicit bias evidence did not prove causation. Iowa Sup. Ct. affirmed with a great history lesson. 24

25 Expert Testimony Rejected Jones v. Nat l Council of Young Men s Christian Assocs. (N.D. Ill. 2014) Disparate impact and retaliation race. Dr. Greenwald as plaintiff s expert again. He stated implicit biases: are now established as causes of adverse impact, and absent clear evidence of overt bias, it is more likely than not that adverse impact is a consequence of unintended discrimination, which can be brought about by managers who remain unaware of having acting in ways that produce adverse impact. 25

26 Expert Testimony Rejected Karlo v. Pittsburgh Glass Works (3rd Cir. 2017) Disparate impact, disparate treatment, and retaliation age. 3rd Circuit affirmed trial court s exclusion of Dr. Greenwald s expert testimony. Court determined general IAT results did not apply to defendant s workplace. Disparate-impact claims do not inquire into the employer s state of mind. 26

27 Implicit Bias in Employment Law Expert Testimony Accepted

28 Expert Testimony Accepted Peterson v. Seagate US LLC (D. Minn. 2011) Collective Action. Disparate treatment and disparate impact age. Defendant sought to exclude expert testimony regarding age stereotypes on grounds it was not supported by evidence. Court allowed the testimony, but also limited it. 28

29 Expert Testimony Accepted Ellis v. Costco Wholesale Corp. (N.D. Cal. 2012) Collective Action. Disparate impact and disparate treatment gender. Plaintiffs expert testified that Costco s business practices were likely tarnished by biases that operate against women. Court found the testimony to be persuasive and provided additional support for Plaintiffs claims. 29

30 Expert Testimony Accepted Salami v. Von Maur, Inc. (Iowa Ct. App. 2013) Disparate treatment race. African American plaintiff offered no overt evidence of discrimination. Complained her white supervisor ignored and avoided her. Trial court denied employer s motion in limine to exclude expert testimony on implicit bias. 30

31 Expert Testimony Accepted Martin v. F.E. Moran, Inc. (N.D. Ill. 2017) Collective action. Disparate treatment race. Plaintiffs expert testified management cultivated an atmosphere influenced by implicit bias. Court allowed the testimony and found the expert s opinions to be rooted in the facts in the record. 31

32 What Can Employers Do?

33 What can employers do? Offer testing Training Share research Utilize review tools Provide opportunities to dialog Spark engagement Increase contact among different groups Draw on peer pressure Why Diversity Programs Fail, by Frank Dobbins & Alexandra Kalev, Harvard Business Review, July-August

34 Recap Defining Implicit Bias Implicit Bias Expert Testimony Rejected Implicit Bias Expert Testimony Accepted What Employers Can Do 34

35 Thank You