Can The Law Handle Implicit Bias
Even though it hasn’t been totally eliminated, there has been major progress over the last 50 years as it relates to employment discrimination. Whether it’s through Title VII or New York State and New York City’s Human Rights Laws, plaintiffs have multiple avenues with which to pursue their claims and hold employers accountable for discriminatory behavior. However, what happens when discrimination is more subtle? Instead of being called the dreaded n-word, what happens when a Black employee is the only person being referred to as “boy” or “bro?” In short, is implicit bias actionable?
Implicit bias refers to attitudes or stereotypes that impact our understanding, behavior and decisions towards other groups in an unconscious manner. Although not as obvious as name-calling, for example, it can be just as damaging to a person’s career in terms of advancement opportunities and pay. Employers aren’t likely to openly discriminate by paying a Black employee less than her White colleague for doing the same work. What might happen instead is that she isn’t given assignments or other opportunities that would make her eligible for promotion and/or a pay raise. These decisions might not be intentional, but they might be actionable nonetheless, if it can be shown that the difference in treatment is based on negative, preconceived notions of protected groups.
Thankfully, courts have shown some flexibility in handling subtle or racially-neutral phrases in analyzing employment decisions. In Ash v. Tyson Foods, Inc., 546 US 454, 456 (2006), where suit was brought for a failure to promote, among other things, the Supreme Court recognized that the word “boy,” while not always evidence of racial animus, is not always benign.
However, even though “boy” isn’t as egregious as the n-word, it does have some recognizable history as a word used to demean Black men. Other words or phrases don’t seem to have the same status. In Humphries v. City Univ. of N.Y., 2013 US Dist. LEXIS 169086 (SDNY Nov. 26, 2013), a Black woman claimed her employer referred to her using pejorative words like “aggressive, agitated, angry, hands on hip.” Again, while the court recognized that race-neutral terms can invoke negative concepts, the court found that since plaintiff wasn’t specifically called an “angry black woman,” those comments, on their own, did not reveal racial animus. So, it seems that as long as an employer doesn’t reference race, a plaintiff that wants to sue based on the use of negative stereotypes will have to show more.
While courts are open-minded as it relates to race or gender neutral phrases as it analyzes discrimination claims, plaintiffs who want to sue based on implicit bias, may have a harder time proving their case.