By Fran Haas
Today, the Iowa District Court for Polk County entered judgment in favor of the State of Iowa in Pippen v. Iowa. This decision concludes the first phase of a long-fought class action claim that alleges the State has not done enough to prevent implicit bias in hiring and promotion decisions involving African Americans. Plaintiffs' novel "implicit bias" theory alleged the State failed to follow its own rules and policies designed to ensure equal opportunity in the workplace—namely, the State's equal employment and merit-based employment system. As the Court stated, this legal question was "more subtle than absolute"—whether the State had "done enough" and "whether reasonable and adequate efforts have been made to comply with the law to prevent disparate impact" on African-Americans.
The State's equal-opportunity merit system requires that all the State's hires and promotions must be based solely on merit. While simple in theory, consistent application of the merit-based system proved complicated for the State largely due to its size and scope. The State's executive branch is comprised of 37 departments, each with its own hiring authority. It includes more than 700 job classifications, each with one or more separate job titles. In total, the executive branch employs approximately 2000 supervisors who have decision-making authority to hire and promote employees.
The Court held that Plaintiffs failed to prove the most crucial element of their case: that the State uses a "particular employment practice" that caused a disparate impact on the basis of race. In so holding, the Court rejected Plaintiffs' argument that the State's failure to enforce or implement an integrated statewide employment system was tantamount to an "employment practice." In a nutshell, the Court held Plaintiffs could not challenge the State's decision-making process as a whole due to the myriad decision-makers and employment practices at issue. The Court also rejected Plaintiffs' argument that the State's employment components and decision-making practices could not be separately analyzed. The Court's analysis relied heavily on the recent U.S. Supreme Court decision in Wal-Mart v. Dukes, which held that sex discrimination claims of 1.5 million current and former Wal-Mart employees could not be joined in a single action.
The Court also held Plaintiffs failed to satisfy the causation element of their disparate impact claim, which was based on social science and statistical expert testimony. The Court asked, "If, as Plaintiffs argue, the 'failure to follow' practice is pervasive and causes disparate impact, why does the statistical modeling of these experts reveal better success rates for African-Americans than whites among the different [State] agencies as between the different stages of the hiring process?" The Court reasoned that if the cause of systemic disparate impact is the failure to follow policy, "one should not find significant 'black advantage' throughout the data among various departments." The Court also noted the experts' evidence showed that Iowa's public service sector employs a larger percentage of African-Americans than the private sector. The Court suggested that it was just as reasonable to assume that the cause of disparity that favors minorities in public employment was the merit-based employment system. In its concluding remarks, the Court quoted Wal-Mart and commented on the diversity of claims, decision-makers, and employment components in the Plaintiffs' class: "They have little in common but their race and this lawsuit."
Although judgment has been entered, this case is far from over. Plaintiffs have indicated that they will appeal the District Court's ruling. We will continue to provide coverage as the case proceeds through the appellate phase. For now, there are a couple of lessons to be drawn from the Court's ruling. First, the Wal-Mart decision has legs. Although Wal-Mart's holding is limited to a procedural class certification question, this Court applied its reasoning in a substantive legal context. Look for plaintiffs and defendants alike to continue to test Wal-Mart's reasoning in other class actions and contexts. Second, a disparate treatment claim based on implicit bias discrimination for an employer's failure to "do enough" to protect against discrimination has yet to succeed as a cause of action. Expect other plaintiffs to test this theory.
A complete copy of the Court's ruling can be found here.