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excerpted from: Anthony Kakoyannis, Assessing the Viability of Implicit Bias Evidence in Discrimination Cases: An Analysis of the Most Significant Federal Cases, 69 Florida Law Review1181 (July, 2017) (Case Comment) (182 Footnotes)(Full Article)


Anthony KakoyannisThe theory of implicit bias occupies a rapidly growing field of scientific research and legal scholarship. With the advent of tools measuring individuals' subconscious biases toward people of other races, genders, ages, national origins, religions, and sexual orientations, scholars have rushed to explore the ways in which these biases might affect decision-making and produce broad societal consequences. An overwhelming majority of social scientists and legal commentators in the field agree that implicit bias exists and has behavioral consequences that adversely affect minority and less-favored groups in American society.

This recognition of implicit bias as a problem has prompted scholars to devise ways that it might be addressed. Prominent legal commentators have long argued that implicit bias evidence should be admissible in employment discrimination cases. In the wake of several high-profile police shootings of black males, many authors have also begun to argue that implicit bias should be acknowledged by law enforcement officials in the management of their departments and potentially offered as evidence in cases against officers. More recent scholarship has expanded the possible applications of implicit bias research to Fourth Amendment jurisprudence and school disciplinary methods.

The question that remains unanswered for scholars, attorneys, and judges is whether evidence of implicit bias and its effects can or should be used in legal proceedings. Although the study of implicit bias dates back several decades, only recently have judicial opinions begun to make direct reference to this body of research. In most cases where the implicit bias theory has been mentioned, courts have cited or introduced it by their own initiative--in other words, the parties in those cases did not mention implicit bias in their pleadings or seek to introduce evidence related to implicit bias. However, in the past six years, implicit bias evidence has been offered in a handful of cases, and judges in those cases have directly confronted the question of whether that evidence is valuable and admissible.

The focus of this Comment is five federal cases that each discussed implicit bias extensively and together represent the most developed legal precedent on the admissibility of implicit bias evidence. Although a small number of other cases also feature discussions of implicit bias, these five cases provide a unique basis for comparison because they are factually and procedurally very similar. All five cases were employment discrimination actions brought under federal law. In four of the five cases, the plaintiffs sought to introduce the testimony of an expert witness on implicit bias. Therefore, the courts in these cases applied similar substantive and procedural standards. Three of the courts sided with the plaintiffs and treated implicit bias evidence favorably; the other two courts rejected evidence of implicit bias. Implicit bias has also been discussed or cited in non-discrimination cases. Additionally, there are a handful of state discrimination cases, but those courts considered the issue far less extensively than the federal cases discussed in this Comment and have thus been excluded.

Part I of this Comment provides a general overview of implicit bias theory and the legal debate that has developed around it.

Part II discusses the legal standards that were important in the five federal cases that are the focus of this Comment.

Part III analyzes those cases, highlighting similarities and points of divergence.

Part IV draws limited conclusions from these cases about the future of implicit bias evidence in federal discrimination actions.

J.D. 2016, University of Florida Levin College of Law. Associate, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.