Judge Blink and the new “Blink” theory of disparate impact
By RYAN J. FOLEY | Associated Press – 2 hrs 55 mins ago
IOWA CITY, Iowa (AP) — In a case closely watched by civil rights activists, an Iowa judge will soon decide whether to grant thousands of black employees and job applicants monetary damages for hiring practices used by Iowa state government that they say have disadvantaged them.
Experts say the case is the largest class-action lawsuit of its kind against an entire state government`s civil service system, and tests a legal theory that social science and statistics alone can prove widespread discrimination.
The plaintiffs — up to 6,000 African-Americans passed over for state jobs and promotions dating back to 2003 — do not say they faced overt racism or discriminatory hiring tests in Iowa, a state that is 91 percent white. Instead, their lawyers argue that managers subconsciously favored whites across state government, leaving blacks at a disadvantage in decisions over who got interviewed, hired and promoted.
Judge Robert Blink`s decision, expected in coming weeks, could award damages and mandate changes in state personnel policies or dismiss a case that represents a growing front of discrimination litigation.
“Whenever there is a case like this that goes to trial, it`s of interest to all of us,” said Jocelyn Larkin, executive director of the Impact Fund, a Berkeley, Calif.-based nonprofit that supports employment discrimination lawsuits and has followed the case. …
University of Washington psychology professor Anthony Greenwald, an expert on implicit bias who testified on behalf of the plaintiffs, said the decision will be important nationally because similar cases against corporations have usually been dismissed or settled before trial.
Scholars and employment lawyers have shown a growing interest in implicit bias in the last several years, after Greenwald and other scientists developed the Implicit Association Test to test racial stereotypes. Their research found an inherent preference for whites over blacks — in up to 80 percent of test-takers and among many people who do not consider themselves racist.
The theory hit a legal obstacle last year when the U.S. Supreme Court disqualified a class-action lawsuit against Wal-Mart`s pay and promotion practices for women. The court found the class was too broad and failed to challenge a specific hiring practice as discriminatory.
Lawyers defending the state have cited that decision in asking Blink to dismiss the case. But the high court`s decision did not specifically reject the theory of implicit bias, and dissenting Justice Ruth Bader Ginsburg wrote that such claims can be allowed.
Class attorney Thomas Newkirk said the science and other evidence that shows disadvantaged groups such as blacks face employment discrimination in subtle ways “is becoming overwhelming.”
“Clearly, the problem is not in Iowa alone, but we believe Iowa is the exactly the right place to ask society to take control of this important issue fairly for all races, and to seek a better future for all as a result,” said Newkirk, who was recently honored by the Des Moines chapter of the National Association for the Advancement of Colored People for his work on the case.
During a monthlong trial last fall, experts called by the plaintiffs` lawyers testified that blacks are hired at lower rates than whites with similar qualifications and receive less favorable evaluations and lower starting salaries.
If Iowa is only hiring the cream of the crop of black applicants, shouldn`t the black hires be performing better, not worse, than the white hires? Or maybe they are but their evaluations are worse because everybody is so unconsciously biased. After all, Science is the art of creating unfalsifiable theories. It`s discrimination turtles all the way down.
In its most prominent recent exercise in hiring, the state of Iowa voted for Obama over McCain 54-45, but they were just doing that to cover up. We can tell.
By the way, seriously, Iowa has few but bad blacks. In 1997, Iowa had the highest black incarceration rate among the 50 states. Liberal north central states with strong safety nets like Iowa, Wisconsin, and Minnesota, tended to attract the last and worst Southern blacks to leave.