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Judge rejects 'implicit bias' theory, dismissing claim that Iowa discriminated against blacks
DES MOINES, Iowa (AP) ' A judge dismissed a class-action lawsuit Tuesday that claimed Iowa's state government systemically discriminated against black job applicants by allowing subtle racial bias to creep into virtually every hiring and promotion decision.
District Judge Robert Blink said the plaintiffs failed to prove their "unique legal theory," which was based on research that suggests Americans inherently prefer whites to blacks, even if they are unaware they do.
The lawsuit, which experts said was the largest of its kind against a state's civil service system, was brought on behalf of up to 6,000 applicants passed over for jobs or promotions since 2003. It sought millions of dollars in lost wages and to compel Iowa to change its hiring practices to better track and eliminate disparities.
Unlike in typical discrimination suits, the plaintiffs did not argue that black applicants or workers faced overt racism or a discriminatory hiring test. Instead, they claimed managers throughout state government subconsciously favored whites and discriminated against blacks through their decisions about who got interviewed, hired and promoted. They claimed state officials failed to follow their own hiring rules to prevent such bias.
The case relied on the theory of implicit bias, which has received growing interest among employment lawyers in recent years after researchers developed the Implicit Association Test to test racial stereotypes. Their work has found an inherent preference for whites over blacks in about 70 percent of Americans, including among many who do not consider themselves racist.
University of Washington psychology professor Anthony Greenwald, who developed the test, testified on behalf of the plaintiffs that a similar percentage of Iowa managers likely had preferences for whites and that it could be a cause of disparities in the percentage of blacks hired.
Blink did not find such testimony persuasive. He said that Greenwald offered no data specific to Iowa about racial bias and could not estimate what percentage of hiring decisions were the result of stereotyped thinking about blacks. The judge also said implicit bias "merely reflects attitudes" and did not mean discrimination occurred.
"Dr. Greenwald conceded that he would not use the phrase 'implicit bias' in writing a scientific article. How, then, should it import more gravamen in the court of law?" Blink wrote.
Greenwald called that claim nonsense Tuesday, saying the term is appropriate but he would use more technical terms in studies. He said the ruling did not discredit the science behind the theory but used other legal considerations to discard it.
"He's saying because these studies were not done in the state of Iowa, we can ignore them," Greenwald said. "I'm not happy with it."
Iowa Attorney General Tom Miller, whose office defended the state against the lawsuit, praised Blink for rejecting the theory. He noted that much of the case involved blacks who were passed over for jobs after sending in applications in which they did not list their race.
"We appreciate Judge Blink's hard work on this very difficult case," Miller said. "This thoughtful decision is based on the law and on the facts of the case."
Miller said the case challenged decisions related to nearly 500,000 applications submitted by 100,000 applicants for more than 20,000 jobs, with a wide range of duties and pay.
Plaintiffs' attorney Thomas Newkirk said he would appeal. He said Blink's decision to allow the case to proceed to trial provided a small step toward understanding how racial bias affects minorities, but his side had been hoping for a bigger leap.
Blink said he was aware of the case's heavy stakes, including whether blacks were being treated fairly by the state's largest employer and the potential for millions of dollars in consequences for taxpayers and plaintiffs.
He said the plaintiffs' case failed to challenge a particular employment practice that was discriminatory, an element required under state and federal civil rights laws.
Blink said the data showed wide discrepancies in the hiring of blacks at different agencies, with some appearing to disadvantage blacks but others appearing to favor them over whites. He also noted the number of black managers had increased over time compared to whites.
"It was clear from the record that some departments were more proactive in exercising best practices, in part due to the frame of mind of managers in those departments," he wrote. He said plaintiffs did not show why agencies had different outcomes, and "the causes could be anything as egregious as explicit bias or as benign as extremely specific job requirements."
Blacks also fare better when applying for public employment in Iowa than the private sector, he said, which could prove that the state's merit-based system was working to reduce discrimination. Blacks represented 2.9 percent of the state's population in 2010 and 2.4 percent of the state workforce, statistics show.