Presuming Bias: How Implicit Bias Shapes the Burden of Proof in the Workplace

Workplace discrimination doesn't work the way it used to. Much of it now runs on implicit bias and structural patterns rather than open hostility, but the law hasn’t kept pace. Title VII's burden-of-proof framework still expects employees to come forward with direct evidence of discriminatory intent. The mismatch is the problem, and it's a problem that the science on how bias actually operates makes hard to ignore. In this program, Dave Hall University of Tennessee College of Law, digs into the gap between Title VII's evidentiary framework and the psychology of implicit bias, and propose shifting the burden of proof to close it. This session turns that analysis into practical guidance — advising employers on bias-aware policies, representing employees in discrimination claims, and counseling clients on internal practices that lower litigation exposure. You'll leave with a clearer sense of where the doctrine stands, where it falls short, and how to counsel clients in light of both. Audio versions of Beverly Hills Bar Association programs are eligible for Self-Study CLE credit in California. Visit www.bhba.org/podcasts for more information.