A theory being discussed in academic circles is that discrimination is often implicit. According to this theory, we tend to filter out certain information based on our preconceived notions about peoples and ethnicities. The academicians refer to this as “implicit bias.” Justice Kennedy recently recognized some validity in the theory in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __, 135 S.Ct. 2517 (2015). The court recognized that in the context of the Fair Housing Act, certain prejudice does exist at the unconscious level. In finding that disparate impact cause of action does exist under the FHA, Justice Kennedy wrote that disparate impact allows the plaintiff to counteract the “unconscious prejudice and disguised animus that escape easy classification as disparate treatment.” The justice suggests that disparate treatment analysis may not deal effectively with implicit bias. But, implicit bias might help understand or show disparate impact. See decision here.

Disparate impact refers to rules or policies that apply to broad groups of persons. Disparate treatment refers to how one particular individual is treated. In the Inclusive Communities case, for example, the plaintiffs alleged that the Texas Department of Housing gave tax credits to developers of low income housing more in minority areas of Dallas and not in middle class neighborhoods. The Texas DH appeared to have some policy that favored middle class areas over low-income areas of town. The plaintiffs then filed suit saying the tax credits lead to de facto segregation. The majority opinion found that the FHA focused on outcomes of nations, instead of intent.

One Missouri law professor believes the implicit bias may be a leading factor in situations involving disparate impact. See ABA Bar Journal report. And, it does make sense to use the theory in housing cases where the violations are often based on some systemic rule. Title VII and its progeny typically focus on individual intent, so it is still unclear what impact the theory of unconscious bias would have employment discrimination cases. A plaintiff can bring a disparate impact case. But, much more common are the individual discrimination cases.