Judge Nancy Gertner & Melissa Hart, Employment Law: Implicit Bias in Employment Discrimination Litigation, in Implicit Racial Bias across the Law 80 (Justin D. Levinson & Robert J. Smith eds., 2012).
Abstract: Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.