The term “implicit bias” (also known as “unconscious bias” or “unconscious stereotyping”) refers to the role unconscious cognitive responses play in decision making. Implicit bias theory posits that, no matter how enlightened an individual decision-maker may profess to be, employment decisions cannot be made in isolation. Proponents argue that courts must account for ingrained social norms in organizations that inevitably produce discriminatory employment decisions.

The Supreme Court’s decision in Wal-Mart Stores v. Dukes highlighted the role that implicit bias social-science testimony can play in employment discrimination cases. 131 S.Ct. 2541 (2011). In Dukes, the plaintiffs represented a class of 1.5 million female employees who alleged that Wal-Mart discriminated against women in violation of Title VII of the Civil Rights Act of 1964 (Id. at 2547; see 42 U.S.C. Sec. 2000e-2(k)), by knowingly permitting local managers to exercise discretion over pay and promotion decisions in a manner that disproportionately favored male employees and had an unlawful disparate impact on female employees. Id.; see 42 U.S.C. Sec. 2000e-2(a). The plaintiffs further alleged that this violation resulted from Wal-Mart’s “strong and uniform ‘corporate culture’ [that] permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.” Id. at 2548.

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