Saturday, July 26, 2014

168.7 - Outrage of the Week: Suit against discrimination fails even though Court admits there was discrimination

Outrage of the Week: Suit against discrimination fails even though Court admits there was discrimination

A couple of decades ago, activists learned that class action suits were an effective way to pursue justice through the courts: People who could not afford to mount a legal challenge to a wrong on their own could join with others in a similar situation and so have the means to take on corporations and government agencies.

So, of course, in more recent times it has become harder and harder for people to pursue such suits: The requirements for being certified, that is, recognized, as a "class" by the courts have gotten stricter and stricter; even small differences in the individual circumstances of the members of the asserted class can get result in certification being denied with the result to suit can't go forward.

Specifically in the area of civil rights suits, not only is it harder to get certified as a class, it has also been made harder to prove you have been wronged even if everyone knows you have been.

Which brings us to the Outrage of the Week.

On July 18, the state Supreme Court of Iowa, in a 7-0 vote, rejected a class-action lawsuit that alleged the executive branch of state government discriminated against black job applicants.

The court upheld a lower court decision to dismiss the case, finding that the class of 5,000 black employees and job applicants failed to prove they suffered systemic discrimination because they did not show that specific hiring practices disadvantaged them.

At the same time, all seven justices recognized the reality of implicit bias, in which individuals subconsciously favor whites over blacks.

The main opinion, written by Justice Brent Appel and joined by three others, said that overt racism has been replaced by unconscious discrimination as the “headwinds faced by African Americans in the employment marketplace.”

A separate concurring opinion from Justice Thomas Waterman and two others, agreed the case should be dismissed even though
there undoubtedly was subjectivity and - as the plaintiffs credibly demonstrated - implicit bias in multiple state hiring decisions.
In fact, Waterman noted that even the original trial judge said "it appears African Americans on the whole were disadvantaged in getting job interviews from some agencies."

This is where it gets outrageous: The plaintiffs' case was based on statistical evidence that blacks received fewer interviews and jobs than whites at state agencies plus a growing body of social science research affirming the concept of implicit bias. Their lawyer, Tom Newkirk, noted data, including some from state consultants and experts, which suggested that blacks were generally disadvantaged.

That sort of statistical evidence of bias used to be enough to prove your case. It's not any more and hasn't been for a while. Instead, as the justices noted in their ruling, current state and federal law require that plaintiffs be able to point to and prove specific hiring practices were discriminatory.

But of course in the case of implicit bias, there is no such specific hiring practice because the discrimination rests within the unconscious mind of the interviewer or hiring agent.

Newkirk said he knew the appeal was a long shot, but considered the ruling “tremendously positive” because "the recognition of implicit bias is huge," paving the way for suture lawsuits.

Frankly, I think that's just trying to put a good face on it because I don't see how that's true. As current federal law stands, unless your employer puts out a memo saying something like "we don't hire us no coloreds," you really don't have a case for claiming bias.

And that is an outrage.

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