If the events of the past few weeks have shown us anything, it's that - like Black lives - words matter. Both spoken and in writing, the language we use has the power to inspire, offend, unite, and divide. Sometimes, the use of seemingly harmless words, or even the absence of words, can be influential.
For lawyers, words are our stock in trade. In contracts and other transactions, choosing the right terms leads to agreement; selecting vague and ambiguous terms, or choosing not to abide by them, leads to disagreement and courtroom disputes. This is no more important than in the employer-employee relationship, especially when invidious racial discrimination exists.
Implicit and Unconscious Bias at Work
Words matter when drafting any document that will be subject to scrutiny, especially in job offers, employment agreements, restrictive covenants, and workplace policies. At their core, however, the words and phrases in those documents create rights and responsibilities for people - each with their own subjective beliefs and prejudices.
This then begs the question, "Can inherent bias be the basis for employment discrimination?"
The concept of inherent or implicit bias was introduced in a 2006 California Law Review article as "the new science of unconscious mental processes that has a substantial bearing on discrimination law," and "[t]he argument that implicit bias is a probable cause of race discrimination sometimes requires inference by a process of elimination."
On the surface, "inherent" sounds like a strong word. But even the strongest definitions like permanent, universal, inseparable, or similar term, leaving plenty of room for dispute.
Even if bias is inherent in every human being, does that mean that an employer's decision-makers will make employment decisions based on that inherent bias? Whether or not decision-makers are aware of their biases, they will inevitably say all decisions are made based on objective criteria and point to documents and words to support their arguments.
What Can We Expect From the Courts?
When a Black, female, or other employee or job applicant claims to have been discriminated against based on race, sex, or sexual orientation, we can expect the courts will require convincing proof to overcome the employer's justifications. Given the present public outcry over police brutality and the Black Lives Matter and MeToo movements, perhaps judges, jurors, arbitrators, and mediators may be more willing to see the more blatant forms of discrimination for what they are.
Most cases, however, do not present the clear proof of insidious discrimination as the notorious George Floyd murder case. Therefore, plaintiffs must be ready with their witnesses and prepare their proofs; they cannot expect to prevail if all they have is "he said, she said" testimony and claims of inherent bias. Experience shows that factfinders do not like to denounce people as discriminators without clear evidence they are guilty of that conduct.
There are discrimination claims that do not require proof of intentional discrimination. For instance, employers may utilize hiring criteria that have the effect of eliminating a significant percentage of Black people from the pool of eligible candidates, with a much lesser impact on white applicants. Examples of such criteria include older criminal convictions such as drug charges or more serious crimes that should not reflect on an applicant's present status, or a woman's ability to carry heavy weights or perform at certain speeds that are out of the range of most women but well within men's capabilities.
When presented with suspect employment criteria that do not demonstrate a "reasonable measure of job performance," factfinders can, and should, find these practices discriminatory. Harkening back to the word "inherent," these cases do not rely on that concept, and hiring managers need not be singled out for racist or sexist conduct. On the other hand, virtually all of these types of cases require careful analysis of statistics and the introduction of expert testimony.
A Final Comment on What the Future Holds
Recent appointments to the federal judiciary point to more conservative leanings regardless of a judge's understanding of the firm grip discrimination has on employment decisions, conscious or unconscious. Certain state courts may provide a better and quicker avenue to fully comprehend the nature of discrimination, how inherent it is, and how it affects employment rights. Similarly, state legislatures may strengthen state laws prohibiting the many forms of employment discrimination
Despite a growing movement and groundswell support across races, acceptance of inherent bias in the employment context may be slow to take root in discrimination cases. While that issue may still be open, lawyers representing job applicants and employees against employers should expect fierce opposition before skeptical judges.