According to the Washington Post, 6,000 black Iowans are claiming that their state government should pay them money for discrimination it doesn’t even realize.

OK.  You should all be clear by now that flirting with your secretary is impermissible overt discrimination.  A few weeks ago, I wrote about Pepsi settling a claim of “disparate impact” discrimination by the EEOC.  (For those needing a refresher – disparate impact occurs when an intentional, but facially neutral, company policy has the unintended consequence of discriminating against certain people).

Now, a group of existing and prospective Iowa state government employees are claiming that the state should be liable for discrimination based on “implicit biases.”  Using statistic and  research from the Implicit Association Test developed at Harvard University, lawyers for the claimants believe that they can show discrimination caused by subconscious preferences for whites by state employment decision makers.

Fine – I get it.  There is some merit to the idea that we have preferences in our mind that we do not even realize.  That is not my problem with the suit.  What I can’t wrap my mind around is the idea that an employer should be forced to pay money to someone because it may have discriminated without even consciously realizing it.

In the law we have “intent” based offenses and “negligence” based offenses.  If you hit someone with a bat, that is an intentional act which provides a right of recovery.  If you are not paying attention and  run over someone with your bicycle, that is a negligent act which properly provides a right of recovery.  In each case, the bad actor is doing something he or she could consciously correct.

What these claimants are asking goes way beyond that.  The claimants want to punish employers for things they don’t even realize they are doing and can’t really do anything about!  At best, employers would have to guess at what their biases are and try to over-correct without knowing if they are combating the right  bias.  In fact, compensating for one perceived or potential bias might result in a more direct bias against another group.  For example, an employer who compensates for concern about bias against blacks may discriminate against Hispanics or whites in the process.

The law cannot provide a remedy for every wrong. It has to balance equities and be as fair as possible without going too far.  If the Iowa plaintiffs succeed, it will be great for those of us who defend businesses, but heaven help our clients!