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Excerpted From: Tanya Katerí Hernández, One Path for “Post-racial” Employment Discrimination Cases--the Implicit Association Test Research as Social Framework Evidence, 32 Law & Inequality: A Journal of Theory and Practice 309 (Summer, 2014) (209 Footnotes) (Full Document)
To create new norms, you have to understand people's existing norms and barriers to change. You have to understand what's getting in their way.
The 50th Anniversary of the Civil Rights Act of 1964 finds the status of civil rights in the United States at a critical juncture. The formal edifice of a civil rights structure precariously stands amidst the erosion of substantive rights for victims of discrimination by a conservative Supreme Court majority increasingly suspicious of any civil rights claims that do not emanate from disgruntled “reverse discrimination” narratives. Today's legal civil rights struggle is in large measure the effort to retain the foundational premise that racial discrimination is still a pervasive and problematic dynamic that the law should be engaged in addressing. In short, the biggest battle for civil rights attorneys today is operating within a civil rights structure that makes it increasingly difficult for any plaintiff (other than “reverse discrimination” plaintiffs) to lodge a triable case of discrimination. Modern civil rights doctrine now approaches racial discrimination as an exceptional occurrence for which plaintiffs must navigate a treacherous obstacle course of evidentiary burdens.
Within the employment discrimination context, the attempt to salvage anti-discrimination law doctrine has been lodged on several fronts. Of particular note has been the effort to incorporate “social framework” evidence. Social framework evidence refers to general social science research results used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case. The primary appeal of social framework evidence is that it offers the potential to more accurately situate a specific case of discrimination against a backdrop understanding of how discrimination actually operates, which can better assist a fact finder in identifying the manifestations of discrimination.
Yet, given the powerful societal conviction in a “post-racial” America narrative of discrimination as an exceptionally rare event caused by aberrant malicious individuals, general social framework evidence alone will be unlikely to assist most plaintiffs in presenting a persuasive case of discrimination. This is because general social framework evidence alone does not address the principal barrier to change that exists for many fact finders--the entrenched belief that discrimination is only caused by intentionally “racist” individuals who are much fewer in number now that Jim Crow segregation has long been dismantled. With this constrained view of discrimination as aberrational and consciously motivated as the social norm, any plaintiff accounts that deviate from this larger societal narrative will be met with resistance that general social framework evidence is likely impotent against. What is needed is a legal tool that can directly speak to the larger societal narrative in ways that assist fact finders to better understand contemporary manifestations of discrimination.
This Article proposes that the use of general social framework evidence specifically incorporate detailed information about the burgeoning social psychology literature regarding “implicit bias,” and, in particular, the Implicit Association Test (IAT) designed to detect the extent of an individual's implicit biases. Implicit bias is a type of discrimination that originates in unconscious mental processes that systematically distort the way we see other people. Studies have shown that even the most “well-meaning” person, who explicitly rejects all kinds of discrimination, unwittingly allows unconscious thoughts and feelings, which usually contain some degree of bias, to influence their objective decisions. Indeed, a number of scholars have pointed to the importance of considering implicit bias as a justification for reforming the doctrinal contours and standards of employment discrimination claims. This Article recommends that in the absence of such doctrinal reform, the presentation of social framework evidence needs to explicitly include the details of implicit bias research and the IAT, in an effort to provide an effective plaintiff account of discrimination that responds to the confusion created for fact finders by today's social norms.
Thus far, employment discrimination lawyers have been largely reticent introducing detailed implicit bias research out of concern that judges would view it as too amorphous and attenuated to fit the current employment discrimination jurisprudence. Indeed, leading civil rights organizations have been urging plaintiffs' lawyers “to present this evidence in court to establish that implicit bias is the catalyst of discriminatory injustices in this day and age.” The main focus of this Article is to address the reticence of plaintiffs' lawyers that has hindered the consideration of implicit bias research in employment discrimination cases thus far.
While the law review literature has already amply noted that social framework evidence encompasses a broad array of social science research evidence which can include, but is not limited to, implicit bias research, this Article distinctively proposes: 1) that social framework evidence be more broadly introduced into employment discrimination cases beyond the current practice of bringing forth expert witness testimony to explain the social psychology of stereotyping when stereotyped perspectives are concretely manifested in the workplace, and 2) that specific details about the insights drawn from the implicit association testing research be included. In short, this Article proposes a litigation strategy that can more effectively elucidate the operation of discrimination in the absence of overt articulations of stereotyping, by introducing detailed implicit bias research as a backdrop for assessing when disparities in treatment, status, access, or opportunity are the result of discrimination despite the absence of overt stereotyping. To the extent that employment discrimination lawyers have been reticent introducing detailed implicit bias research and judges have been equally cautious about admitting such evidence, this Article provides guidance as to how to incorporate this evidence into the existing employment discrimination jurisprudence.
Section I will introduce the contours of social framework evidence and explain why the present “post-racial” narrative about discrimination requires that detailed information about the social psychology of implicit bias be inserted into a social framework proffer. Section II will then concretely explain how detailed implicit bias testing data can inform social framework evidence. Section III will explore the receptivity of current case law to implicit bias social framework evidence, and Section IV will conclude with a specific case example of how detailed implicit bias social framework evidence can be applied to aid fact finders in more accurately assessing allegations of employment discrimination.
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In short, without an implicit bias research social framework, plaintiffs like Thomas are left struggling to explain the unexplainable--the existence of racially distinctive treatment without any overt employer references to race-based justifications or stereotypes. With an implicit bias research social framework, a fact-finder has a lens for identifying how, even in the absence of racially biased or stereotyped employer statements, racially differentiated treatment can be explained by socially pervasive implicit bias. While the contemporary presumptions about a presumably “post-racial” society will continue to present challenges to litigators attempting to explain the significance of racial disparity in the absence of an overt Jim Crow segregation mandate, this Article offers the implicit bias testing research social framework as one mechanism for assisting fact finders in recognizing the harms of racial discrimination.
Professor of Law, Fordham University School of Law.
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