February 1, 2013

Thoughtcrime and liability for alleged unconscious biases

By Thoughtcrime and liability for alleged unconscious biases

In George Orwell’s dystopian novel 1984, police monitored residents of Oceania for evidence of “thoughtcrime.”  In Pippen v. Iowa, a case that takes the concept of unintentional discrimination to dangerous new levels, that concept doesn’t seem too far away.  In Pippen, several black employees and job applicants filed a lawsuit claiming that the entire executive branch of Iowa systematically discriminated against them–not intentionally, but because of “implicit biases” harbored by state hiring personnel.  That dubious social science theory pegs the majority of people as unconsciously racially prejudiced, even if they are consciously committed to the ideas of equality and merit.

It doesn’t take much to qualify as biased under an online test used by the plaintiffs’ experts in the case: the Implicit Association Test.  Subjects receive their scores depending on the milliseconds of difference it takes to press certain computer keys when specific word and picture associations appear on the screen.  But if such milliseconds can form the basis of a Title VII disparate impact case, anything a business does could be classified as illegal discrimination.  For if everyone is “implicity biased,” then every business decision is also “implicitly biased.” If the plaintiffs have their way, employers would have to adopt quota systems and other race-conscious means to avoid being haled into court, abandoning valuable business practices like the merit-based hiring systems used in Iowa government.

PLF filed a friend of the court brief in this case yesterday, explaining why the Iowa Supreme Court should not allow that social science theory to expand current discrimination law and open a pandora’s box of negative legal and policy outcomes in the process.  “Thoughtcrime,” “implicit bias,” and millisecond hesitations, are not what our discrimination laws are designed to prevent.

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