California has passed statutes creating flexible floors on the number of minority and women board members for certain public corporations headquartered in California (e.g. AB 979). Not surprisingly, there’s been litigation.
I’ve submitted an amicus brief in one of the cases, Alliance v. Weber (ED Cal. before Hon. John A. Mendoza) (motion for summary judgment). The focus is on implicit bias.
Here’s the intro (full pdf below):
In their motion for summary judgment, Plaintiff Alliance for Fair Board Recruitment briefly mentions “implicit biases.” It clumps the concept together with “structural and systemic” discrimination, which it characterizes as “the sorts of disparate impacts that are said to arise from societal forces, structures, and implicit biases, rather than intentional discrimination or animus. . . .” Doc. No. 88-1 at 14-15 (emphasis added). Unfortunately, terms such as “structural” or “societal” discrimination are not always defined precisely. As such, it is easy to lump these terms together with implicit bias, and describe them collectively as vague complaints about historical background unfairness.
Amicus believes that such conflation is scientifically inaccurate, conceptually confused, and legally erroneous. This brief addresses the concept of implicit bias, though it also recognizes that the Defendant Secretary of State presents evidence of many other forms of bias and causes of discrimination.
To promote clear and careful consideration of the merits on the issue of implicit bias, this amicus brief has three objectives:
(1) provide a clear, accurate, objective update to the Court about the scientific research on implicit bias;
(2) explain that discrimination caused by implicit bias is a form of different treatment (not disparate impact), which courts have recognized under various state and federal antidiscrimination laws;
(3) explain that remedying ongoing discrimination—including ongoing discrimination caused by implicit bias—is a legally compelling interest that poses a difficult problem to remedy.