I have a dream . . . a bad dream! I am standing before my client’s peers in a discrimination trial, and I am pointing an accusatory finger at a well-dressed, professional looking employer. Her lawyer has worked hard at presenting her as a successful entrepreneur with a sterling reputation for good character. I am screaming at this paragon of civic achievement with aspersions of “racist” or “ageist” or “misogynist.” You get the picture. I am telling someone who looks and acts very much like the jurors that she is an evil discriminator.
The judge then asks me to present my evidence. I look somewhat lost. Evidence? Well, she fired my poor client, you honor. She fired me client for a totally unbelievable reason. My client was replaced by someone outside her “protected category.” “Really?” says the judge, who is about to dismiss the case. I desperately plead case law. The judge has to admit my basic proof seems to raise a technical question of fact for the jury to decide.
I think I’m home free when I look over at the jury, who will now get this case for decision. They are either bewildered or openly hostile. The audacity of a lawyer to claim an evil motive by such a nice person, and based only on circumstantial evidence. Later, the judge reads the jury instructions that define my client’s burden of proof. Nowhere in the instruction is there a requirement of direct evidence to prove discrimination. This technical point provides me little solace.
I spin the case as much as the evidence allows. I focus on the jury instruction that outlines my basic proof requirements. I hone in on the nature of circumstantial evidence, and that the jury instruction will allow them to find discrimination even if there is no evidence that the decision maker who fired my client uttered a syllable of race or age bias. They’re still looking at me that way. I feel I am floating in space with nothing to grab onto. Fortunately, I awake with that wonderful feeling of “it was just a dream.” Still, I am now motivated to search deeper into the dark places where discrimination dwells: the human psyche. Is there some way to approach the proof of discrimination that is not so technical and mechanical? Is there an approach that goes directly into the unconscious processes of the human mind?
The answer is “yes” and the legal question is: “What is the form of proof that will get that evidence before a jury?” I have for sometime felt that an expert in recognizing the unconscious operation of bias in human behavior could be that source of evidence. I will tell you that the search is not easy. I did not find a list of such experts, or even what their primary training and education might be. Is such an expert a psychiatrist, a psychoanalyst, a Human Resources expert, an industrial psychologist, a mystery writer?
Today, my ongoing search led me to do what we all now reflexively do: I googled. After the inevitable dead-ends, I came across the name “Caren Goldberg, PhD” found at http://www.carengoldberg.com/. I sent an email to Dr. Goldberg as an introduction, and as a pleasant surprise, got a prompt call in return. In my email I had mentioned that I had taken some online tests to expose hidden biases. I shared my surprise at just how biased I am, yet how unaware (at least before the tests). She knew of the tests immediately. She referred to “Project Implicit” [https://implicit.harvard.edu/implicit, the very site I had used to take the tests.] I confessed my dismal inner darkness. She graciously acknowledged we all hold subconscious biases. The bad news is that these biases produce automatic responses that harm the employment opportunities of other workers.
Dr. Goldberg agreed with me that the number of experts who testify concerning subconscious processes that produce discriminatory results is a small number, and that she definitely works in a niche. However, she also assured me the area of expertise is well established, and is supported by a large volume of articles in professional journals. I complained that my own incipient search had not turned up much. She suggested I use Lexis Nexis, and search for articles that refer to “unconscious bias theory.”
My limited free time of chit chat with Dr. Goldberg was about to end. I’m slightly fanatical about “take away” points, so I asked Dr. Goldberg if she would share three parting observations about expert testimony in this matter of “unconscious bias theory.” She again graciously made her three brief points:
1) “Unconscious bias” testimony along will not win. She looks for the subjective evaluations, and the choice of language used by managers in disciplining employees. Bias and subjective, loaded criticisms correlate positively. For an older worker, that might be statements that the employee lacks the energy for the position, no longer has fresh ideas, and seems rigid or inflexible in a changing environment.
2) She looks carefully at the “culture” and “climate” of the workplace. For example, is there an aggressive diversity hiring and promotion program? Is there diversity training? Are there “affinity networks” of like persons? Are investigations conducted professionally in accordance with Human Resources industry wide standards? Do the official policies match up with the daily work behaviors?
3) How proactive and professional is the Human Resources department? She noted that she has, on occasions, been shocked at how little high ranking H.R. officers understood their legal duties, or how to create training and systems that promoted equal opportunity.
I thanked Dr. Goldberg for her “off the cuff” assistance on my early journey into a new (but not all that new) way of making a case for discrimination. I thought our conversation had been useful. I felt more comfortable that there was both data and respectable scientific opinion to support an expert in testifying that the decision makers in my cases were motivated by unconscious biases against my clients.
Later that night, my dream returned. Once again I was playing the overbearing prosecutor without a shred of evidence. Once again, the jury is aghast at my charges, and the angelic employer looks far more victimized than my client. This time however a bright beam of light enters through the skylight of the courtroom, and an expert witness with a powerful data study in each arm, is beamed into the courtroom. I call her as my next witness. To everyone’s surprise except hers and mine she qualifies as an expert despite so called “Daubert” objections. She reviews the specific cultural discrepancies she has found in the company; the loaded language she has extracted from the deposition of the employer witnesses; and the dismal lack of knowledge by the Human Resources department. During the discovery portion of the case, she notes, Mr. Pray unexpectedly persuaded the court to allow her to administer several tests to Mr. Entrepreneur designed to discuss hidden biases. Based on all her findings, she opines that my older black female client was in the least favored of Ms. Entrepreneur’s categories of people. She explains how we all cultivate a self image that excludes conscious consideration of those traits we would find shameful or “bad.” She notes that Ms. Entrepreneur is probably sincere in her testimony that she held no bias against the employee, but that the facts and data indicate she was indeed biased against the plaintiff, and that bias influenced the way she evaluated the plaintiff’s work performance.
I am not yelling. The jury is not scowling. Ms. Entrepreneur is not looking either attacked or slandered. The Judge is smiling. My client embraces me with a great sigh of vindication as the jury awards her so many zeros the written page cannot contain them. Again, I awaken, but at least I am not in a cold sweat.
© 2011 FXP
[Contribution to this article by Caren Goldberg, Ph.D., Professor of Human Resources Management. For a summary of Professor Goldberg’s background, see: http://carengoldberg.com/about_dr_goldberg]