4th Circuit Decision: Implicit Bias a More Probable Cause of Discrimination Today

By Mona Tawatao

A decision issued last week by the Fourth Circuit Court of Appeals included a groundbreaking acknowledgment that modern-day discrimination is more likely caused by “nuanced decisions” and implicit bias.

In Woods v. City of Greensboro, the court reinforced established precedent that says that just because plaintiffs claiming race discrimination were treated favorably in the first instance does not mean they are foreclosed from trying to prove that subsequent unfavorable treatment by the same actor is discriminatory.

The City first decided to enter into an economic development loan agreement with a black-owned television network, but later voted against entering into the agreement even though network had more than enough collateral to secure the loan, the City had made a loan to a non-minority business under similar circumstances. Historically, the City had made very few loans to minority businesses.

The network sued the City for race discrimination based on violation of equal protection and other claims, but the trial court dismissed the case because the City had initially recommended the owners of the network for the loan and first voted to extend the loan.

The appeals court said the trial court was wrong to dismiss the case, particularly at the initial phase of the case when the network had not had a chance to obtain more evidence from the City to prove their case.

The appeals court analogized the situation to absolving a company of wrongdoing for denying women positions once they become pregnant just because the company recruited those women to their firm in the first place.

Importantly, the appeals court explained that in this day and age, explicit, across-the-board discrimination by any one actor is highly unlikely.  Rather, discrimination is more likely to occur as the result of “nuanced decisions” and implicit bias.

Alluding to what it saw as the trial court’s flawed reasoning, the court warned that discrimination cases based on “more subtle theories of stereotyping or implicit bias” are particularly at risk of premature dismissal “should a judge substitute his or her view of the likely reason for a particular action” instead of operating under the proper standard, in this case, the rule that initial good or fair conduct does not insulate an actor from liability for subsequent discriminatory conduct.

In acknowledging the pervasiveness of implicit bias and the subtle and insidious ways that modern-day discrimination works, this case provides a solid framework for getting past the initial hurdle of stating one’s race discrimination case, when the defendant has mixed motives or the defendant’s actions have not been uniformly negative toward the plaintiff.

Mona Tawatao is a Senior Litigator at the Western Center on Law & Poverty. Mona also co-chairs the Equal Justice Society board of directors.

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