The role of implicit bias as evidence in employment discrimination claims continues to evolve, as does research attempting to explain and quantify the concept of implicit bias. In Walmart Stores, Inc. v. Dukes, the Supreme Court curbed plaintiffs’ use of implicit bias as evidence in support of the commonality requirement of Rule 23. Post‐Dukes, plaintiffs have looked for creative ways to leverage scientific developments in implicit bias within the legal framework of employment discrimination law.
The most promising answer to the “Dukes problem” looks to implicit bias as substantive, rather than procedural, evidence. By repackaging implicit bias as social‐framework evidence, plaintiffs can persuasively contextualize for factfinders the ways in which differential treatment plays out in a workplace, even in the absence of overtly discriminatory attitudes or stereotypes. Whether courts will adapt to this use of implicit bias is increasingly important, as modern workplace discrimination is becoming more subtle and often is the result of unconscious biases.