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The theory of “unconscious bias” has been emerging in employment litigation over the past several years. Plaintiffs alleging employment discrimination have attempted to apply this theory to support two specific aspects of their employment discrimination claims: first, their motions for class certification under Federal Rule of Civil Procedure 23; second, their ultimate burden of proving that race, sex or some other protected characteristic played a role in a challenged employment decision. In both circumstances, expert evidence of unconscious bias has become a powerful tool against employers and, if accepted by the federal courts, promises to create new challenges both for plaintiffs and defendants in employment discrimination litigation. Unconscious bias is a social science theory premised upon the belief that people inherently and unthinkingly apply race and gender stereotypes to everyday decisions. See Audrey J. Lee, “Unconscious Bias Theory in Employment Discrimination Litigation,” 40 Harv. C.R.-C.L. L. Rev. 481, 483-86 (2005) (citing Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” 47 Stan. L. Rev. 1161, 1186-1209 (1995)). Under this theory, such stereotypes cloud the process by which individuals process information and directly affect the way they react to those around them. Some research has shown that individuals tend to accept these automatic stereotypes as true and accurate, while at the same time more heavily scrutinizing behavior inconsistent with their own stereotypes. Id. at 484, n.18. If the theory is true, individuals across all sectors of society may base the way they act and respond to different circumstances upon what other people look like. In the employment law context, the theory of unconscious bias may complicate the formation of litigation strategies. Plaintiffs have argued that the existence of these unconscious biases necessarily creates the likelihood of discriminatory employment decisions by individuals harboring the alleged biases. See EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451 (S.D.N.Y. 2004). Certain social scientists offer expert testimony that the unconscious biases of those making personnel decisions often result in inherently discriminatory behavior that violates Title VII of the Civil Rights Act of 1964, even when there is no objective evidence of animus. See Dukes v. Wal-Mart Inc., 474 F.3d 1214, 1226 (9th Cir. 2007) (citing expert social scientist testimony for the proposition that unconscious gender stereotypes are likely to influence personnel decisions when they are based on subjective factors). The unconscious bias experts claim that the unconscious (and automatic) application of stereotypes, if left unchecked, results in discrimination against employees or prospective employees who do not fit the white male paradigm. Id.; see Lee, supra. According to some experts, this is true even in the absence of the more traditional forms of direct and circumstantial evidence that, until now, has been necessary to prove race and sex discrimination claims under Title VII. Class certification The most common area in which employment discrimination plaintiffs have relied upon expert testimony by social scientists regarding unconscious bias involves motions for certification of class actions against employers. See, e.g., Arnold v. Cargill Inc., No. 01-2086, 2006 WL 1716221 (D. Minn. June 20, 2006) (accepting expert testimony relating to unconscious bias as evidence of commonality on a motion for certification of a Rule 23 class action); Beckmann v. CBS Inc., 192 F.R.D. 608 (D. Minn. 2000). This application of the unconscious bias theory may pose the greatest threat to employers in employment discrimination because of the sheer size of the class actions sought, which exponentially increases the potential exposure of the employer. The theory in this context may result in individual or smaller groups of plaintiffs tying together otherwise unconnected employment decisions in a single lawsuit. The recent decision by the 9th U.S. Circuit Court of Appeals in Dukes is a perfect illustration of the manner in which class certification that is based, at least in part, on unconscious bias evidence can create substantial exposure. The class certified in Dukes consisted of more than 1.5 million employees working around the nation in vastly different job classifications. The reliance on unconscious bias to form such large classes of plaintiffs dramatically changes the playing field in employment discrimination litigation. Obviously, the potential exposure and cost of defense in such actions becomes significantly greater in the class context. In addition, the potential for large fee awards provides plaintiffs’ attorneys a great incentive for pursuing class, rather than individual, claims. Often, plaintiffs attempt to introduce evidence of unconscious bias to prove one specific element of the Rule 23(a) certification analysis, “commonality.” See Cargill Inc., 2006 WL 1716221, at *10-*11; Dukes, 474 F.3d at 1225-31. The element of commonality requires that the plaintiff prove “that there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(1). Plaintiffs have introduced expert testimony to establish commonality in an effort to link hundreds (and sometimes thousands) of otherwise unconnected employment decisions. Plaintiffs and their counsel use testimony of expert social scientists to demonstrate that personnel decisions and policies and practices of the employer create common issues of law or fact because they are inherently discriminatory due to the existence of unconscious bias within the decision-making process. Some federal courts have demonstrated a willingness to recognize the unconscious bias theory as reliable for purposes of class certification motions and have cited such evidence as one basis for granting a motion to certify a class of employment discrimination plaintiffs. With the plaintiffs’ success in Dukes, employment lawyers should expect that reliance on unconscious bias evidence in employment litigation will only increase. Merit analysis The other, and perhaps more problematic, area in which plaintiffs seek to apply the unconscious bias theory is in the merits analysis of employment discrimination claims. In a disparate treatment case, the federal courts have almost universally applied the McDonnell Douglas burden-shifting formula to establish the baseline requirements for a plaintiff seeking to prevail. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Recently, some plaintiffs have offered evidence of unconscious bias in the third prong of the McDonnell Douglas analysis to prove that the legitimate, nondiscriminatory reason for the challenged action is simply a pretext for unlawful discrimination. Thomas v. Eastman Kodak Co., 183 F.3d 38, 58-64 (1st Cir. 1999). Several federal courts, while not outright adopting the view that expert opinion of unconscious bias can constitute evidence of discrimination, have allowed the use of the unconscious bias theory to buttress intentional discrimination claims during the pretext phase of the analysis. See Id. at 51-56; Butler v. Home Depot Inc., 984 F. Supp. 1257 (N.D. Calif. 1997); Morgan Stanley. The federal courts’ acceptance of evidence of unconscious bias to prove employment discrimination creates the very real risk that Title VII will be expanded to cover not only intentional discrimination, but also discrimination that may be the product of unconscious (and perhaps uncontrollable) biases of those in the decision-making chain. The emergence of this theory requires employers to reassess the way they implement personnel decisions to ensure that such decisions are sufficiently insulated from any taint by unconscious bias. The introduction of unconscious bias evidence to prove pretext in discrimination actions poses some difficulty for employers defending personnel decisions that are otherwise unconnected to the protected class of the plaintiff or plaintiffs. First, using evidence of unconscious bias marginalizes the intent requirement inherent in federal anti-discrimination statutes. Congress enacted Title VII and the other federal discrimination statutes to prevent employers from taking employment action that was motivated by an employee’s or prospective employee’s race, sex, age or disability, among others. Title VII has, at least until recently, been perceived by the courts as exclusively reaching intentional, conscious discrimination. See Lee, supra, at 492; Melissa Hart, “Subjective Decisionmaking and Unconscious Discrimination,” 56 Ala. L. Rev. 741, 748-756 (2005). The acceptance by federal courts of unconscious bias (which is necessarily unintentional or unknowing) to prove pretext may conflict with the concept of requiring plaintiffs to prove that the employer had a specific intent to discriminate based on membership in a particular protected class. This application of the unconscious bias theory in such circumstances may represent a significant shift in Title VII jurisprudence. Second, and perhaps more problematic, unconscious bias theory by its very nature relies upon generalizations that may or may not apply to the decision-making process challenged in a specific employment discrimination action. The unconscious bias theory relies in large part on the premise that all individuals automatically make decisions based on stereotypes developed by their own unique, personal experience. The problem with this theory, of course, is that the testifying expert does not have actual knowledge (and, thus, cannot take into account) each individual’s specific stereotype. The theory itself is based on assumptions regarding what generalizations employment decision-makers apply in making personnel decisions on behalf of the employer. In other words, the unconscious bias experts assume that because the decision-maker is (for example) a white male, he is predisposed to make decisions that harm African-American women. This assumption (itself the product of a generalization) may or may not be true in any specific case, and the unconscious bias expert cannot testify with any specificity whether a particular employment decision is based on such unconscious bias. It remains to be seen to what degree the unconscious bias theory will alter the employment discrimination landscape. Courts have certainly accepted evidence of unconscious and cognitive biases as a basis for granting Rule 23 class certification. Nonetheless, federal courts may be reluctant to fundamentally do away with the intent requirement of employment discrimination litigation that plaintiffs and defendants have taken for granted for many years. Charles E. Feuss and Jeremy D. Sosna are partners in the Minneapolis office of Ford & Harrison. They represent employers in labor and employment matters and can be reached, respectively, at [email protected] and [email protected].

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