Earlier this week Iowa District Court Judge Robert Blink granted judgment for the State of Iowa in a high profile class action race discrimination lawsuit. (Pippen v. State of Iowa, link here). The plaintiffs alleged that 37 departments in the State’s executive branch maintained hiring and promotion practices that had an adverse disparate impact on African Americans. The plaintiffs claimed the State favored white applicants and employees over equally or even better qualified black applicants and employees in hiring and promotion decisions. The class included approximately 6,000 employees, former employees, and applicants, and sought over $70 million in damages.
Although the State won the case in the trial court, the plaintiffs plan to appeal. More importantly, it appears the plaintiffs’ lawyers in Pippen view the case as an opportunity to fundamentally reshape the landscape of discrimination litigation in this state. Indeed, Judge Blink noted in his opinion that one of the stated purposes of the plaintiff class was to “broaden the horizons of Iowa’s legal landscape premised on their belief in our state’s progressive stance on civil rights.”
There are three novel aspects of the case that warrant close scrutiny during the appellate process because of the potential impact on future discrimination cases: 1) the scope of the class; 2) the nature of the challenged employment practices; and 3) the type of evidence the plaintiffs relief upon, most particularly the concept of so-called “implicit bias.”
The first unique aspect of the case was its scope: it covered every executive branch department. Each of the 37 departments exercises its own hiring authority. There are more than 700 diverse job classifications and 2000 supervisors that have authority in the hiring process. The sheer number of different hiring and evaluation processes within each department, and for each job, made the case unwieldy.
The “glue” the plaintiffs relied upon to tie these various processes together was the State’s statutory merit based employment system. The goal of the merit system is to hire and promote employees solely on the basis of merit and fitness, as ascertained by examinations or other appropriate screening methods. There is another agency, the Department of Administrative Services (DAS) which oversees the merit employment system for all executive branch departments. In Wal-Mart v. Dukes, the famous employment class action case the U.S. Supreme Court decided last year, the Court ruled that a proposed class of millions of current and former employees at thousands of Wal-Mart Stores across the United States was too large and disparate to qualify as a class action. Notably, Judge Blink had already ruled that the plaintiff class in Pippen satisfied the criteria to proceed as a class action, notwithstanding the Wal-Mart decision.
The second novel aspect was the nature of the employment practice the plaintiffs claimed was discriminatory. Disparate impact is a form of unintentional discrimination. The plaintiffs are required to prove that a particular employment practice that is racially neutral on its face—say a test–impacts African Americans more adversely than whites. In this case the “particular” employment practice at issue was not particular at all. The plaintiffs did not claim a single test, screening mechanism, or interview process had disparate impact. Rather, they alleged a systemic failure within the executive branch to adequately enforce the state’s merit based employment system. Specifically, the plaintiffs attacked the fact that lower level managers have discretion to make subjective judgments about an applicant’s qualifications. In essence, Plaintiffs claim the State should have done more to ensure that individual managers were complying with the policies requiring equal opportunity. Unlike most discrimination cases that are based upon the commission of an act, Pippen was based upon the State’s alleged omissions.
The third and most troubling aspect of the case (from an employer’s perspective) was the type of evidence the plaintiffs relied upon to prove that the discretion afforded to supervisors resulted in a disparate racial outcome. That evidence was the concept of “implicit bias”. Plaintiffs presented the testimony of Dr. Anthony Greenwald, a psychology professor at the University of Washington. Dr. Greenwald coined the term “implicit bias”, which the court characterized as “a state of racial inclination which is manifested without the person’s slightest appreciation that they are acting on it.” Dr. Greenwald apparently claims that even people who do not intend to discriminate are likely to have implicit bis, and “unthinkingly they may discriminate without recognizing they are doing that.” Dr. Greenwald opined that most groups who have been tested “showed a 70 percent automatic preference for whites over blacks.” His opinion is apparently based upon a test called the “Implicit Association Test”, a computer based test that requires a subject to associate a verbal or visual stimulus viewed on a monitor with either “pleasant” or “unpleasant” words.
Judge Blink rejected Dr. Greenwald’s opinion that implicit bias of supervisors tainted most of the subjective discretionary employment decisions in the State’s executive branch. It is not clear whether the State challenged the admissibility of Dr. Greenwald’s opinions, and given that the trial was to the court and not a jury such challenge may have been fruitless anyway. But, this is not the last time employers will see attempts to use so-called implicit bias to prove discrimination, both in class actions and otherwise. Novel expert testimony is often rejected when it is first tried, but if plaintiff’s lawyers keep trying, they ultimately may find a court that will admit such evidence. This type of testimony could be particulary damaging in a jury trial. If employers can be held liable for discrimination based upon the subconscious thoughts of their managers, that the managers themselves don’t know exist, it will turn discrimination litigation completely on its head.
Implicit bias was really the heart of the plaintiffs’ claim in Pippen, and it will be important for defendants to vigorously oppose the admission of this type of expert testimony in future cases. Judge Blink’s opinion provides a road map for doing just that.
For additional commentary and analysis of the Pippen case, I recommend the following: