April 30, 2024

Implicit Bias and How It Affects the Practice of Law

2023 Annual Forum Coverage

Accumulated from program materials from the panelists The language of inclusion is evolving. Even if you do not want to offend, like most people, you can inadvertently do so. The Diversity Conference created this session to cover nuanced and timely topics including recognizing micro-aggressions and implicit bias. The session was led by a judge and an attorney committed to promoting all aspects of diversity in the legal community, as well as a professional counselor trained to support diverse attorneys and a chief diversity, equity, and inclusion officer.

Lawyers have a duty to improve the legal profession, as implied in the Preamble to the Virginia Rules of Professional Conduct:

"As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. . . . A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest."

Explicit vs. Implicit Bias

Implicit bias, sometimes referred to as "unconscious" bias, is the human tendency to make decisions based on stereotypes about certain groups, such as individuals of a given race or gender. See United States v. Mateo Medina, 845 F.3d 546, 553 (3rd Cir. 2017). The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System 3-4 (August 2013)).

Explicit bias is intentional discrimination that occurs when an individual is aware of a feeling regarding a particular group and acts upon that thought. It often connotes that the individual understands the source of that feeling and perhaps evenly consciously endorses it. Id. at 7.

Implicit bias can impact a wide variety of groups. For example, it affects groups such as racial minorities, women, and the LGBTQ+ community. However, it also affects any discrete group of people as to which adverse stereotypes may exist, such as older workers.

Jury Selection

The seminal case on this topic, Batson v. Kentucky, 476 U.S. 79 (1986), was a criminal trial involving an African American defendant. In this case, the prosecutor used his peremptory challenges to strike all four African Americans from the panel, resulting in an all-white jury. The United States Supreme Court reversed the conviction under the Equal Protection Clause. The panel pointed to a few basic principles:

Although a defendant "has no right to a 'petit jury composed in whole or in part of persons of his own race,' the Equal Protection Clause does guarantee "the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." Id. at 85-86 (quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880)). Secondly, the defendant initially may put forward "prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. at 93-94. When circumstances suggest that there has been a "total or seriously disproportionate exclusion" of individuals of a certain race, this "is itself such an unequal application of the law . . . as to show intentional discrimination." Id. at 93 (quoting Washington v. Davis, 426 U.S. 229, 241 (1976)). Finally, the prosecution may rebut a prima facie showing by advancing a "neutral explanation" for the action." Id. at 97. The explanation need not rise to the level sufficient to justify exclusion for cause, but it cannot rest on an assumption of sympathy to the defendant based on shared race. Id.

Baston challenges are permitted in Virginia. James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 (1994) (citations omitted) outlines this procedure, noting "The defendant must make a prima facie showing that the prosecutor has exercised peremptory strikes on the basis of race. If this showing is made, the burden shifts to the prosecutor to articulate a racially neutral explanation for striking the jurors in question. If the court determines that the proffered reasons are race-neutral, the defendant should be afforded an opportunity to show why the reasons, even though facially race-neutral, are merely pretextual and that the challenged strikes were based on race. But, ultimately, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination." On appeal, "the trial court's findings [concerning a Batson challenge] will not be reversed unless they are clearly erroneous." Id.

Employment Issues

If a plaintiff wants to claim employment discrimination based on implicit bias, the plaintiff may proceed on the basis of two alternative legal theories: "disparate treatment" or "disparate impact." See Wright v. National Archives & Records Service, 609 F.2d 702, 710-11 (4th Cir. 1979); Barnett v. Technology International, Inc., 1 F. Supp.2d 572, 576 (E.D. Va. 1998).

The elements of a disparate treatment claim were laid out by the United States Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

The plaintiff in a disparate treatment case bears the initial burden of establishing a prima facie case, which requires the following four elements: "(i) that [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Jordan, supra, at 191, 483 S.E.2d at 206 (quoting McDonnell-Douglas, 411 U.S. at 802). Once a prima facie case is established, "the 'burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Id. (quoting McDonnell-Douglas, 411 U.S. at 802).

The plaintiff may still prevail by rebutting the explanation offered by the employer with evidence "that the proffered justification is merely a pretext for discrimination." Wright, supra, 609 F.2d at 714 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 578 (1978)).

Ultimately, disparate treatment rests on an allegation of "intentional racial or other impermissible discrimination in the treatment accorded a claimant." Id. at 713; see also Barnett, supra, 1 F. Supp. 2d at 577 ("Proof of discriminatory intent, in disparate treatment cases, 'is critical, although it can in some situations be inferred from the fact of differences in treatment.") (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). The limitation to "purposeful" acts, as well as, the burden-shifting analysis applied to such claims, are analogous to the approach used in challenges to peremptory juror dismissals under Batson, supra.

A disparate impact claim, on the other hand, does not rest upon proof of intent. Instead, these claims involve "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Wright, supra, 609 F.2d at 711 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)).

To establish a prima facie case of disparate impact, a plaintiff must point to "an employment policy or practice which, though facially neutral or even benign in actual purpose, nevertheless imposes a substantially disproportionate burden upon a claimant's protected group as compared to a favored group within the total set of persons to whom it is applied." Id. (citing, inter alia, Griggs v. Duke Power Co., 401 U.S. 424, 430-32 (1971)).

To prevail, the plaintiff "must isolate and identify 'the specific employment practices that are allegedly responsible for any observed statistical disparities.' Merritt v. Wellpoint, Inc., 615 F. Supp. 2d 440, 445 (E.D. Va. 2009) (quoting Smith v. City of Jackson, 544 U.S. 228, 241 (2005)).

Once a prima facie showing of discriminatory impact has been made, the burden shifts to the defendant to show that the challenged policy or practice is justified by "business necessity." Davis v. Richmond, Fredericksburg & Potomac R.R. Co., 803 F.2d 1322, 1328 (4th Cir. 1986). "The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential impact." Chappelle v. E.I. DuPont de Nemours & Co., 497 F. Supp. 1197, 1200-01 (E.D. Va. 1980) (quoting Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert dismissed, 404 U.S. 1006 (1971) (footnotes omitted)).

How to Address Implicit Bias?

The panelists urged these guiding principles:

  • Be aware that implicit bias exists and affects everyone's thinking.
  • Let your conscience be your guide.
  • Make conscious decisions that any reasonable person would view as fair and transparent.
  • Always have the best interests of the organization in mind, adhering to the mission, values and vision of the organization.
  • Seek guidance from a colleague or mentor

Following these principles, the panelists urged asking these questions before making an important decision that affects others:

  • What liabilities do I create for the organization by making a decision that has implicit biases?
  • Have I followed all policies and procedures before making this decision?
  • Is this the same decision I would make for anyone else on the team?
  • Would I be making a different decision or acting differently if this person was of a different gender or race?
  • Do I have any biases against this person that may influence my decision?
  • Is this the fair decision I would expect for myself, if I were on the receiving end?