Toward a More Perfect Union: Overcoming Division, Discrimination, and Distance Through the Rule of Law

In this year's Distinguished Jurist in Residence Lecture, the Hon. Bernice B. Donald (ret.) and Michael A. Brody examine the impact of implicit bias on hostile work environment claims in the remote workplace and discuss how antidiscrimination law can account for this “new normal.” This Essay examines the impact of implicit bias on hostile work environment claims in the remote workplace. It argues that consideration of implicit bias is necessary for the proper adjudication of these claims because the virtual workplace is likely to foster the worst of our implicit biases. It urges courts to use Kimble v. Wisconsin Department of Workforce Development as framework for incorporating implicit bias as a substantive component of antidiscrimination law. This approach will allow courts to rapidly develop a robust and consistent body of case law that will provide predictable and equitable results for both employers and employees.