In a unanimous opinion, the Iowa Supreme Court affirmed the trial court dismissing the plaintiffs’ disparate impact claims. In this case, plaintiffs alleged that the subjective thoughts and biases of Iowa government officials caused a disparate impact on the basis of race. To our knowledge, this was the first time that plaintiffs had tried to prevail on an “implicit bias” theory of discrimination. Ala 1984, this was an attempt to punish unconscious thoughts that individuals are incapable of correcting.
PLF filed an amicus brief in this case, arguing that the entire implicit bias theory was a bunch of baloney. The Iowa Supreme Court didn’t go that far; the Court held that plaintiffs had failed to prove that a particular “employment practice” was incapable of separation. Title VII requires a disparate impact plaintiff to show that a discrete employment practice caused the disparate impact. Because the plaintiffs had failed to separate out a particular practice, they failed to satisfy their prima facie case.
It’s hard to quibble with that opinion. Indeed, the implicit bias theory was not the only ridiculous aspect of this case. And while we hoped that this case would end — once and for all — the idea that subconscious thoughts can lead to actionable discrimination claims, we are pleased that the Iowa Supreme Court rejected plaintiffs’ case in its entirety.