Is discrimination based on an unconscious bias illegal? New lawsuit says yes.

In a case pending in Iowa state court, over 6,000 black state residents allege that they were denied employment opportunities by the state government due to an implicit bias in favor of white residents. The case is highly unusual because it does not claim any direct discrimination, indirect discrimination, or that a facially-neutral employment practice has resulted in a discriminatory impact on minorities.  The case, rather, theorizes that the state government can be liable for discrimination based on unconscious bias alone, because such a bias disadvantaged blacks in their opportunities for jobs, promotions, and general advancement. A decision on the state's motion to dismiss is expected in a matter of weeks.

This writer finds this unconscious bias theory both compelling and problematic. It is absolutely true that unconscious prejudices play a role in personnel decisions. Everyone, no matter how "enlightened" or progressive, has biases toward some people or group, both positive and negative. In a state that is 91% white such as Iowa, it is entirely plausible, if not expected, that unconscious bias would adversely effect black residents seeking employment with the government.

But does that mean the group of people against whom such a bias exists should have a cause of action? There are certainly many unconscious biases that infect employment decisions. Creating liability here could compel employers to consciously think about race in order to make sure that they are not unconsciously thinking about race.

Better than penalizing the entire state government for unconscious bias, the law should allow affirmative action programs to rectify such a bias. Unfortunately, the Supreme Court has taken that option away.