The New Jersey Appellate Division addressed an issue of first impression in our state and across the nation: whether evidence of implicit bias can be the basis for a claim of race-based discrimination. In State v. Scott, our Appellate Division answered this question in the affirmative. While this case focused on criminal law, the analysis is wholly applicable in the employment context as well.
The defendant, Scott, was arrested following the issuance of a BOLO that sought a “Black male wearing a dark raincoat.” The victim had reported that she had been robbed by a “male wearing a dark raincoat.” The police dispatcher added the word “Black” to her BOLO description, not originally reported by the victim/eyewitness.
The court’s analysis began with the standard of review established by State v. Segars. Segars follows the same burden-shifting analysis required by McDonnell Douglas v. Green. The criminal defendant (or employee) asserting race-based discrimination must first show, by a preponderance of the evidence, that they have suffered some negative action that was motivated by their race; the burden of production then shifts to the state (employer) to show a race neutral, legitimate business reason for the action; and finally, the burden shifts back to the defendant (employee) to show that the state’s (employer’s) proffered reason is merely a pretext for their true discriminatory intent.
In Segars, a police officer saw the defendant, a Black male, using an ATM machine, ran the defendant’s license plates and then made a vehicle traffic stop. The defendant argued that his stop and arrest was racially motivated, raising the inference of a racially motivated discriminatory police action. The burden then shifted to the state to provide a race-neutral reason for the traffic stop. The police officer lied about using the ATM machine, claiming that he had not been in the bank; however, bank cameras showed the officer using the ATM. The police officer instead testified that he had merely run the plates as part of a routine traffic stop. The Segars court found that the defendant had established his prima facie burden of showing, by a preponderance of the evidence, that the police action was racially motivated, noting specifically that “a trier of fact could infer that Officer Williams checked Segars’ plates because of his race and testified falsely about using the ATM machine and seeing the defendant in the bank before he ran the plates because he knew that racial targeting is wrong.”
The Supreme Court also found that the state failed to rebut this presumption of discrimination with credible testimony. The Court found that the police officer had lied about his use of the ATM machine and the reasons for which he had performed the traffic stop. While the state met its burden of producing the officer’s testimony, the defendant had effectively impeached the credibility of the race-neutral rationale for running the defendant’s plates. The Court also found that the state’s failure to recall Williams to try to rehabilitate his testimony rendered the state unable to defeat the inference that the stop had been racially motivated. This is the essence of the McDonnell Douglas burden-shifting analysis.
Following the presentation of the plaintiff’s prima facie case, Prong 2 of the McDonnell Douglas analysis requires the employer to provide a credible, non-discriminatory explanation for their actions against the employee to rebut the inference of discrimination raised by Prong 1. Prong 3 requires the plaintiff to show some evidence to rebut the presumption of legitimacy raised in Prong 2, i.e. showing that the proffered race-neutral reason is merely a pretext for true discriminatory animus.
Like McDonnell Douglas, Segars requires the burden of persuasion to remain with the criminal defendant/employee at each step. Applying these standards, the Scott court found that once the defendant demonstrated that the victim/eye witness had not used the word “Black,” the burden shifted to the state to show that there was some race-neutral reason that the dispatcher had inserted the word “Black” into the description of the perpetrator sent out as the BOLO. In its defense, the state argued that responding officers properly relied upon BOLO in a racially neutral manner. However, the Appellate Division found that the state missed the point by focusing on the arresting officers’ actions when it should have provided a race-neutral reason for the dispatcher’s action.
Judge Ronald Susswein’s opinion establishes the critical takeaway from the case, namely that not all racially motivated actions are the result of overtly racist actions but that racism can also result from “implicit bias.” He specifically held that “evidence of implicit bias can support an inference of discrimination that would establish a prima facie case under Segars, shifting the burden of production to the prosecutor.” With this holding, the Appellate Division has firmly established that implicit bias can form the basis of a prima facie discrimination analysis and as discussed above, since the Segars analysis closely tracks McDonnell Douglas, this holding is equally applicable to employment discrimination cases. Judge Susswein opined that since “implicit bias” played a role in the dispatcher’s addition of the word “Black” to the BOLO, the evidence obtained as a result of the BOLO stop must be suppressed.
The Appellate Division followed the trend set by State v. Andujar and Rivera v. Union County Prosecutor’s Office in recognizing the role of implicit bias in policing and jury selection. In Andujar, our Supreme Court defined implicit bias as “attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. Such biases … are activated involuntarily and without an individual’s awareness or intentional control.” In the context of jury selection and law enforcement, the Supreme Court explained that “implicit bias is no less real and no less problematic than intentional bias.” The Court added that from the standpoint of the State Constitution, it makes little sense to condemn one form of racial discrimination yet permit another.” The need to acknowledge and remedy the presence of implicit bias, as noted by Rivera, Andujar, and now, Scott, applies equally to our workplaces.
The question now is whether “implicit bias” will satisfy the prima facie requirements of a discrimination claim. Considering Judge Susswein’s guidance that “one does not have to be a racist to rely on stereotypes” but that the harm from implicit bias is as bad as from overt racism and, further, our Supreme Court’s direction that “purposeful discrimination” standards in Batson and Gilmore be modified to allow for an analysis based upon implicit bias, the answer must be YES. Scott recognizes that “implicit bias is no less real and no less problematic than intentional bias…[and that] it makes little sense to condemn one form of racial discrimination yet permit another.”
The next step for the courts will be to determine whether implicit bias can form the basis for civil liability for a racially hostile environment against employers. Specifically, will defendants who have been proven to hold racially impermissible implicit biases, necessarily be deemed to have created an environment “severe or pervasive” enough to rise to level of discrimination under the New Jersey Law Against Discrimination or Title VII of the Civil Rights Act?
A plaintiff alleging a racially hostile environment in the workplace must assert that the employer’s actions were “severe or pervasive enough to make a reasonable person believe that the conditions of employment had been altered and that the working environment is hostile or abusive.” This standard has long been the benchmark against which hostile work environment racism cases have been measured under the LAD and Title VII of the Civil Rights Act.
With the strides that our judiciary is making toward recognizing the prevalence of implicit bias in policing and in our courts, they are also acknowledging the harmful effects of implicit biases in our workplaces. For too long, the “severe or pervasive” standard has only recognized overt, intentional acts of racism, leaving implicit bias racism rampant and unchecked. With Scott, our courts see implicit bias as a form of racism, no less harmful or insidious than overt acts of racism. Where private and public employers, courthouses and police departments are beginning to train their staff to recognize and identify their implicit biases and avoid them, their failure to do so or to stop institutionalized racism arising from implicit biases should be allowed to form the basis of an employee’s prima facie case for discrimination and hostile work environments. Logically, an employer’s failure to properly train its employees on implicit biases and to appropriately address acts of racism arising from implicit biases must necessarily result in liability in the same manner as overt acts of racism. The identical analyses of a hostile work environment claim run on parallel tracks through Segars and McDonnell Douglas, and accordingly, State v. Scott is equally applicable to cases brought under the LAD and Title VII of the Civil Rights Act.