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Close your eyes and imagine someone baking brownies in a country kitchen. The baker you conjure is likely to look more like Aunt Bea than, say, Ice-T. If you are asked to visualize “a terrorist,” the resulting mental image is far more likely to look like Mohamed Atta than Madeleine Albright. Are these mental images the product of an intractable discriminatory mind-set — latent internalized stereotypes — or does the human brain innocently (and sensibly) supply these images by playing the odds? And does this phenomenon have any necessary implication for how employers judge individuals in the employment setting? There can be no doubt that it is unlawful to rely on generalizations to deny an individual an employment opportunity, even if the generalization is accurate for the group as a whole. In City of Los Angeles, Department of Water & Power v. Manhart (1978), the Supreme Court observed that “employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females. Myths and purely habitual assumptions about a woman’s inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less.” Thus, as this case noted, “[i]f height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.” Accordingly, employers must ensure that they are basing employment decisions on the attributes of each individual worker, and not on the perceived attributes of the class to which he or she belongs. SEEING STEREOTYPES Stereotypes as a legal concept gained greater currency as a result of Price Waterhouse v. Hopkins (1989). In that Supreme Court case, the plaintiff accused the accounting firm of denying her a partnership because of her gender. The firm had criticized the female plaintiff for her “aggressiveness,” when that trait was valued in males. Female candidates for partnership, the Court observed, were “viewed favorably if partners believed they maintained their femininity while becoming effective professional managers,” a standard that, by definition, was never applied to males. The Court found evidence of bias in the fact that one of the partners had urged the plaintiff to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.” More recently, the Supreme Court has upheld Congress’ decision to entitle all employees, male and female, to unpaid leave in order to prevent women from being fired for excessive absenteeism when they conform to the stereotype of being overwhelmingly the ones who take time off to care for others. In Nevada Department of Human Resources v. Hibbs (2003), the Court observed that the Family and Medical Leave Act was Congress’ effort to address “the fault line between work and family — precisely where sex-based overgeneralization has been and remains strongest” (emphasis added). As these cases affirm, federal laws against employment discrimination forcefully reject the idea that every member of a demographic group can be assumed to possess the characteristics that many of those in the group possess. But after Price Waterhouse, the lower courts began to turn that simple employment principle into a cause of action. These courts appear to have concluded that one can directly infer the existence of discrimination from the existence of stereotypes. This concept has complicated and misdirected employment law. LIMITED STUDIES But the greatest problem arises where the concept of stereotyping invades class action law. Class actions are being built upon the assertion that managers harbor, and inevitably rely upon, racial and gender stereotypes in making employment decisions. And that reliance supposedly explains statistical imbalances. Plaintiffs have begun to place central reliance on the testimony of social scientists willing to assign differences in employment results to the operation of stereotypes. That testimony has been accepted uncritically by courts as potent evidence of classwide injury, but the data simply do not support the conclusions offered. Although there is a significant body of scientific literature in the field of stereotypes, that work consists almost entirely of studies performed on campus, with students (working for extra credit) as the subjects. These subjects are asked, for example, to screen r�sum�s of fictitious job applicants with obviously male, female or gender-ambiguous names (or names supposedly typical of other demographic groups). But the laboratory is not the real world, and most professionals doing serious research in this field of study warn about the limited “external validity” of these studies — the power of the studies to predict human behavior in settings infinitely more complex than the laboratory. Even in the laboratory, this research shows, sensibly enough, that decision-making based on stereotypes is most likely to occur when the decision-maker knows little or nothing about the “target” other than that specific demographic information. If you were asked to choose a team for a game of football, and you had no further information about the individuals from whom to select players other than gender, it might well be sensible to pick all males based on the assumption that men are more interested in and more experienced atplaying the sport than women. But if you could actually see these individuals, you might well decide to select certain young, athletic females instead of bedraggled, graying, pot-bellied male employment lawyers. That is, you would rely on the actual data you had at hand — called “individuating information” in the field of stereotype research — rather than the group generalizations with which you might have begun the process. Similarly, when a manager decides to promote an individual or hand out bonuses, the manager has a rich source of “individuating” information — observed employee performance — on which to base a decision, and, as the research shows, is far less likely to rely on stereotypes. The mischief posed by the stereotype research for employers arises because employment law proof schemes have traditionally treated any difference in outcomes among demographic groups as prima facie evidence of bias. Only the bravest of employers would dare offer as an explanation for such a perceived imbalance the explanation that men and women (or different racial or ethnic groups) differ meaningfully with respect to, say, interest in particular types of employment. As a result, plaintiffs often have free rein to argue, with the aid of “expert” testimony and judicial abdication of enforcement of the rules for admitting expert testimony, which the imbalance exists because of managerial reliance on stereotypes operating at the subconscious level. But the truth is that many (though certainly not all) stereotypes have a basis in fact. An “imbalance” that is consistent with a commonly held stereotype is not necessarily, or even likely, caused by the employer’s reliance on that stereotype. Instead, it may well be caused by the facts that underlie the stereotype. Empirical data, from study after study, show that as a group, women in this country do shoulder a disproportionate share of the workload in the home, have disproportionate responsibilities for child care and household maintenance, and thus as a group are proportionately less interested than men in jobs with unpredictable schedules or the need to relocate. College enrollment statistics unequivocally show that men, women, and various ethnic and racial groups are attracted to various fields of study at different rates. BEYOND BIAS One frequent assertion made by plaintiffs’ experts in the area is that managers in an environment dominated by a particular group (typically white males) tend to disregard or discount the accomplishments of “out-group” workers — that minority group members do not get proper credit for their achievements because of the pernicious effect of stereotypes. But in a study of women in various law schools with relatively larger and smaller female populations, researchers with the University of Massachusetts and the American Bar Foundation found that it was the behavior of the female students — not their male professors — that varied depending on the size of the female population. Specifically, the study found that the actual performance of women on anonymously graded exams rose with the percentage of females in the student population. The finding has profound implications for the importance of affirmative action to be sure, but it also significantly undermines the notion that observed disparities between men and women (and, presumably, among other demographic groups) necessarily arise because of managerial bias. The question, then, is whether there is any reason to suspect that a particular observed “imbalance” results from pervasive bias rather than material differences between groups of people. When women get less generous bonuses than men in a largely male work environment, is it because of stereotypical thinking by managers or depressed performance of women? When a computer company’s successful software engineers are almost all white and male, is that because hiring managers cannot “see” minorities and women in those roles, or does it reflect something about the interests of people in those groups? Class action discrimination cases are proliferating in no small measure because courts have been willing to assume a critical role for stereotypes in employment decision-making, yet unwilling to consider head-on the available evidence on the very real differences between various demographic groups that can account for differing success rates. The law of employment discrimination has always been premised on the assumption that interest and ability are equally distributed among men and women and all racial and ethnic groups. Because we have assumed this to be true, we expect to find at least rough parity of outcomes among all of these groups. When we do not see such parity, the law imposes a presumption that the employer has relied upon some unlawful characteristic to account for the shortfall. There is sufficient evidence in the social science literature to question the viability of this assumption. Barbara B. Brown and Neal D. Mollen are partners in the D.C. office of Paul, Hastings, Janofsky & Walker. Erica Larsen is an associate in that office. They may be reached at [email protected], [email protected], and [email protected],/a>, respectively.

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