Implicit Bias In Legal Arguments — The Optics Always Matter

A choose in the Southern District of New York not too long ago denied a motion to dismiss in a discrimination case filed by a secretary at Biglaw organization Quinn Emanuel. Marin v. Quinn, Emanuel, Urquhart & Sullivan LLP, SDNY Index No. 17 CV 5488 (VEC). The conclusion in this case built lawful news, but not so substantially simply because it is but one more discrimination claim in opposition to Biglaw. It was newsworthy simply because a critical argument built by the defendants in aid of their motion was that a supervisor’s use of the “N-word” was just a bad joke and was not proof of discriminatory animus. This looks to have annoyed the choose (my characterization, not hers, and maybe a little bit of an understatement). That the motion to dismiss the grievance was denied is not strange or sudden. Motions at the pleading phase are normally denied simply because substantially a lot less is essential to plead a viable claim in a grievance than is ultimately essential to survive summary judgment or prevail at demo. Additionally, discrimination situations can be simple fact intense and if a claim fulfills the bare minimum amount common, ordinarily discovery and depositions are required ahead of there is enough data (or lack thereof) to influence a court to dismiss it.

So then why was this case noteworthy? Maybe the judge’s response to the “it was a bad joke, but just a joke” argument is one reason. One more a lot less apparent reason is that the optics constantly make a difference. In today’s diversity landscape of implicit bias, #metoo, and heightened racial tensions, use of that term just simply cannot be characterized as a joke — excellent, bad or or else. Let us be clear, use of that term, specially in an employment placing, is by no means a joking make a difference. When counsel tries to argue it away as a joke, it just appears bad.

Maybe the true tale right here is that implicit bias is an significant issue that simply cannot be dismissed in both employment configurations or lawful arguments. One particular of the outcomes of implicit bias is that the man or woman at whom the bias is directed may perceive bias in which somebody else may just see harmless conduct, a neutral comment, or joke. Some far more apparent illustrations of this are when a non-Latino man or woman straight away assumes that English is not their Latino colleague’s most important language or that you should love hip hop but not opera simply because you are black. Probably a lot less apparent (but not definitely) was but one more argument made use of in the Quinn Emanuel case. Counsel argued that there is practically nothing wrong with a supervisor inquiring a black worker if they have at any time been arrested simply because that might just be a indicator of “solidarity” in “this time of Black Life Issue.”  A little far more assumed about how that previous case in point seemed, or fairly, sounded to a man or woman of colour might have also built counsel comprehend that it would not influence the Decide to rule in their favor anymore than their sick-deemed “N-word” argument.

Litigators are human, however some loathe to acknowledge that. Occasionally we overlook that it is constantly significant to see and value the point of view of your opponent as clearly as your individual. In issues in which implicit bias is a aspect, you should look at thoroughly that what may not be substantial to you and your customer may be significant and even offensive to somebody who is not like you, and you should be careful about how you deal with all those information. In the conclude, Quinn Emanuel may prevail in this case, and I do not would like to comment on the deserves of the claim. That reported, persuasion is critical in any litigation. Disregarding the potential affect of implicit bias, and the optics of arguments that only emphasize that bias is a risky and unpersuasive way to litigate in “this time of Black Life Issue.”

Christine A. Rodriguez is of counsel to the organization Balestriere Fariello and effectively signifies men and women and tiny companies in all method of employment discrimination, civil legal rights, felony defense, civil litigation and business litigation issues. She also advises tiny companies on all aspects of lawful issues from agreement to worker concerns. You can get to her by e-mail at christine. a. rodriguez@balestrierefariello. com.

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