In the modern workplace, discrimination typically manifests itself in subtle forms. Corporate managers rarely utter discriminatory remarks or act in an overtly discriminatory manner.
If an executive is foolhardy enough to act overly discriminatory, however, employers often have no alternative but to terminate the executive and to make amends to affected workers, thereby eliminating the conditions which lead to litigation.
It is for this reason that employment discrimination litigation now generally involves circumstantial evidence. Plaintiff lawyers must prove a negative–that the only explanation for the treatment of their client is discrimination. To do this, plaintiffs typically attempt to prove their cases circumstantially, by creating doubt about the employer's claimed reason for the personnel decision at issue. (See infographic.)
With increasing frequency, however, plaintiffs' counsel in employment litigation uses a new tactic to demonstrate discriminatory bias. Their theory is that of "unconscious bias."
In other words, an employer's decision-makers–typically white males over 40–will inevitably make personnel decisions adverse to the interests of women and minorities "because they cannot help themselves."
Stated more directly, plaintiffs argue that if white male decision-makers over 40 are left to their own devices, it is inevitable they will favor others like them, and disadvantage women and minorities. Some even generalize further, and attribute so-called corporate "glass ceilings"–renamed "white ceilings"–to this phenomenon.
Plaintiffs' lawyers use expert testimony by sociologists to prove the theory of unconscious employment discrimination bias. Thus far, because of the costs and relatively novel nature of the theory, the "unconscious bias" argument is surfacing primarily in bet-the-company type class-action litigation.
The typical theory espoused by expert sociologists on the plaintiff's side is that where companies give managers too much discretion and allow them to rely on subjective factors in hiring, pay and promotion (as opposed to objective, highly structured processes), this type of unfettered decision-making inevitably results in adverse impact to women and minorities because people naturally revert to stereotypes in making personnel decisions.
Generally speaking, the plaintiffs' expert in these types of situations is an academic, basing expert opinion upon laboratory studies and "social framework" research to support the "unconscious bias" theory.
In class actions, plaintiff attorneys argue this is the glue–in legal terms, the required "common" policy that stretches across the class and the company on a nationwide basis–that makes it appropriate for the lawsuit to be certified as a class action.
In other words, an employer's unstructured personnel process (where there are no objective standards to constrain managerial discretion) is a common policy that impacts all plaintiffs in an identical fashion.
Several courts have accepted the "unconscious bias" theory, at least insofar as the testimony has been determined to be admissible and something upon which the jury can consider the plaintiffs' case. But other courts have deemed such testimony to be "junk science," and have excluded expert opinions offering the theory as lacking any scientific basis or relevance to the actual decision-making in the workplace.
An argument for employers that resonates with some courts is that while stereotypes might come into play in everyday interactions among strangers, a supervisor in the workplace who has known an employee for months or years acts on individualized and specific information rather than implicit stereotypical assumptions about various minority groups. In essence, the employer's position is that the "unconscious bias" theory is not worthy of credence in a modern workplace.
While the debate ranges in the courtroom regarding the efficacy of the "unconscious bias" theory, one thing is for sure: Corporations confronting employment discrimination lawsuits in 2007 will need to account for, and defend against future litigation with a mind toward this new plaintiffs' theory.
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