Education is Key
Bias, prejudice, discrimination, racism, agism, and sexism are all concepts often misunderstood by employers and employees. One aspect of the Newkirk Law Firm's commitment to education is helping employers and employees better understand bias and how it affects decisionmaking. We create awareness that there are subtle forms of bias that act as a complete barrier to equal employment, even in the absence of racist or sexist language or other overtly bigoted behavior.
Click here to be taken to the Project Implicit website.
EDUCATING OURSELVES AND THE COURT ON THE TRUE NATURE OF BIAS AND THE TRUE EXTENT OF BIAS AND HOW THAT BIAS OPERATES TO AFFECT DECISION-MAKING, by Thomas Newkirk
The true nature and extent of bias contradicts the traditional views of bias as being relatively rare and as being polarized between us (the good who are free from all negative bias) and (the bad) those with openly bigoted views. Bias is not measured in extremes and the vast majority of those who have bias that affect their decision-making are in the middle of the scale, not at either end. The true extent of bias suggests that far more people suffer from negative views of certain groups that we would like to believe including our friends, relatives and coworkers. The true nature and extent of bias can only be understood by those willing to look in the mirror.
The true nature of bias consists of wide variety of feelings, attitudes, associations, perceptions, stereotypes, judgments, bias, and overt prejudice; which in turn can be either be openly stated, hidden, overtly conscious, bordering on the edge of awareness or seeping deep from within the subconscious. The true nature of bias includes an understanding that most people within American society have likely derived some degree of negative biases against at least the three main protected classes (Race, Gender, Age) and likely have such biases within their mind at some level of consciousness.
The standard response to the above paragraph is as follows: “Well of course we all have biases, one cannot escape them. I prefer a certain basketball team and I favor my wife’s cooking.” That is not what we are talking about. History, experience, current studies and social science suggest that large numbers of person have negative, i.e. unfavorable associations or biases against blacks, women and the aged. Those attitudes affect decision-making to the detriment of those groups.
Appendix Figure A-1 shows a scale of bias and motivations. The ruler represents levels of consciousness and willfulness that exist in all of us. The purpose of the scale is to point out that bias involves a variety of relatively benign, overtly harmful, conscious and subconscious perceptions, not merely two extremes. The scale does not represent an opinion of exactly where any of those views of minorities fall along the conscious or willfulness scale. There is no need because Title VII prohibits adverse employment actions against minorities that is motivated anywhere along that scale.
The true extent of bias includes an understanding that most people within our society have likely derived some degree of biases against protected classes and likely have such biases within their mind at some level of consciousness. To put it bluntly, at least regarding the three main classically protected groups, i.e. women, non-whites and the aged, in a room of 100 people 70 of them will have some degree of negative association with that person based on their age, gender or color. That negative association will affect the decision-making of the person and therefore, the danger or likelihood that bias will be a factor is extremely high.
Look at Figures A-7 and A-8. They merely are intended to provide a simple visual reference for how a decision or a group of decisions can be impacted at any point by the filter of negative bias. Now think about the hundreds of decisions, thoughts and groups of decisions that a minority must negotiate every week in their employment. The impact of even one person in the chain of decision-making with some degree of negative bias is very real.
Figures A-9 through A-13 show results of testing that reveals high levels of bias in most Americans regarding issues of race and gender. Those graphs only represent the bottom end of the scale shown in Figure A-1. That means they do not purport to measure racism or sexism. They only measure negative and positive attitudes toward groups. It may be that racists and sexists will also test for these lower levels of bias, but the point is to reveal the existence of bias in people who look and act like you and me. In short, even if the only bias that remained in society was subconscious, it would still provide barriers to minorities. Subconscious bias affects our decision-making regarding minorities as effectively as if we had hate in our hearts and minds.
The Science of Implicit Bias:
Science can now clearly identify at least the bottom end of the scale. It can tell us that when it comes to the bare negative associations of certain protected groups or positive associations with historically advantaged groups, that an extremely high percentage of people in our society retain these negative associations.
There are three major categories of beliefs regarding groups. They are explicit attitudes, implicit stereotypes, and implicit attitudes. An attitude is a positive or negative evaluation of some object or idea. An implicit attitude can rub off on an associated object. The word implicit implies that these attitudes are sometime hidden from view and even from conscious awareness.
A stereotype is a belief that members of a group possess or share some characteristic. A stereotype and an attitude are closely related. Not all attitudes are stereotypes, but all stereotypes are attitudes. Evidence of attitudes shows how negative or positive feelings about a group can rub off on a person or object. Likewise, a negative attitude toward a person can likely rub off on views of actions taken by that person. The implicit attitude represents the bottom of the scale. Stereotypes represent some level of awareness between implicit attitudes and overt bias. The explicit attitude may represents the high end of the scale for that person, assuming that they openly admit their true attitudes or bias.
Tests have been developed to measure the degree of hidden bias (implicit negative associations toward groups) in people who deny they have such bias. For example, people favor whites in this country, they favor males, and they favor the young. They do all this without regard to open racism or sexism or ageism and without feelings of animosity toward those groups. The actions of all of those individuals are intentional in the legal sense. They hire, they fire, they demote, but the awareness of the nature of their own bias is often very low (or, to the extent the awareness is high) the willingness to express them explicitly remains low.
The Implicit Association Test is a test that was designed to measure this hidden bias. The test was developed in the 1990’s because psychologists began to figure out that most people denied any bias or racism or sexism when asked. However the effects of racism and sexism continued to endure and the evidence of hidden bias remained. The question was how to measure bias that either people were denying or which people did not even know they had. The Implicit Association Test or IAT, was a direct response to this problem.
Implicit Association is a mental response that is so well learned as to operate without awareness, or without intention or without control. The Implicit Association Test is a test designed to measure responses to gender, race and age. Greenwald & Banaji, Psychology Review, (1995) This test measures the reactions of individuals to simple word associations and photos of person of a particular race, or age or gender. The test measures reaction time that the subject uses to associate words that the subject views as positive or negative to the class of persons being reviewed for implicit bias. The results of this testing are showing that it is no longer a question of who has bias against certain races or against age or gender, but to what degree.
Testing shows High Prevalence of Bias
The implicit association test has been given to thousands of people across the United States and the world. The advent of the Internet allows millions of people to take it, and therefore vastly increases the database of information. The results from the IAT show a reasonable degree of scientific certainty about the following results regarding implicit bias concerning both attitude/preference and knowledge/stereotype:
1. Implicit bias can be large. Implicitly if not explicitly, the magnitude of bias toward particular social groups is large. Whether it is age, race, class, ethnicity, religion, physical appearance, or sexual orientation, there is now strong evidence that negative associations automatically arise when we think about the less favored (gay, elderly, African Americans, Arabs, Jews--when compared to Christians, the obese).
2. The bias is widespread. Many, including the test developers themselves, show evidence of implicit biases, even in the absence of any conscious bias, and sometimes in opposition to the consciously expressed attitude.
3. Not all groups demonstrate the bias equally. Quite often implicit attitudes,
like explicit ones, favor the groups to which we belong. There are some surprising and psychologically meaningful deviations. For example, members of disadvantaged minorities and even statistical minorities do not show the same implicit ingroup preference as do members of majority and dominant groups. This finding often stands in contrast to the consciously expressed, strong in-group preference by members of disadvantaged or small groups.
4. Not all individuals demonstrate the bias equally. Following from the above finding, within groups, there is a wide range of individual differences. We have also learned that there are individual differences in the degree to which each person is contaminated, and that these individual differences in the strength of the bias is meaningful – those with stronger biases are likely to be more discriminatory in other behaviors than those who show a weaker bias.
5. Implicit bias is related to explicit bias. The work shows that consciously held attitudes and stereotypes may indeed be associated with the degree of implicit bias, such that those who report lower explicit bias also appear to be lower in their implicit bias (this finding can vary quite a bit depending on the category – race, political attitudes, etc.), but it is no longer possible to ignore the fact that the two are related. Since conscious attitudes are controllable and can be consciously adopted, this provides a path whereby implicit attitudes can be influenced.
6. Implicit bias is plastic. Among the more optimistic revelations from recent data is the finding that seemingly minor shifts in the environment (such as an imagery exercise or the presence of a particular person) can change the magnitude of the bias that is observed. For example, the presence of an African American experimenter appears to lower anti-Black bias (Lowery, et al. 2001) and imagining women in positions of authority lowers the Female+weak bias (Blair, 2001). These findings raise questions about the power of the immediate situation in determining which one of may possible attitudes is expressed.
Source - Mahzarin Banaji - Notes on Implicit Bias
The ideas and data of implicit association and the IAT clearly makes visible the bottom end of the scale of those motivations prevented by Title VII. It shows that the nature of bias includes an entire range of motivations and conscious awareness. It makes known the true extent of bias within our society. Finally, it either is, or soon will be able to establish that the possession of attitudes measure by the IAT actually causes motivation that can adversely impact on protected groups. Check out the website for more information. www.implicitassociationtest.com
Studies Showing the Scope and Effect of Bias
In addition to advances in social psychology and testing methods, there are recent and troubling studies that show the effect of bias and which further support the conclusion that bias is real, has a real effect and exists across a broad class of people who cannot be defined as entirely racist or sexist.
Study 1 - An assessment of Juvenile justice system perceptions of the race of white and black youth offenders. The study was based on data from 1991 and was printed in 1998. The study examined the juvenile probation reports which are used by the Court system to recommend probation, sentencing and other forms of punishment or lack thereof. They study examined how the Juvenile Court officers assessed internal and external explanations for deviant behavior. This study determined that juvenile court officers evaluated black and white offenders in different ways. Blacks were assumed to be more likely to re-offend, less respectful, and have less remorse. Whites were viewed in the opposite light. The offenders all had felony offenses, similar past criminal history and age. Bridges and Steen, Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanism, American Sociological Review Vol. 63, No. 4, (Aug. 1998)
The study concluded that whites were viewed more favorably, but did not assign overt racism to this phenomena.
Study 2 – A study examining the reasons for differences in the use of certain cardiology medical procedures according to the race or gender of the patient. The study examined 720 doctors using black, white and female actors to portray patients exhibiting similar symptoms. The study presented the patients in hospital gowns to prevent assessment based on clothing; they presented the patients with similar insurance and income. The study also determined the individual physicians’ preferences regarding diagnosis and treatment for certain cardiovascular issues to allow for any differences in diagnosis based on the doctor’s personal view of the illness being tested.
The study found that the race and sex of the patient affected the physician’s decision about whether to refer patients with chest pain for cardiac catheterization. The study found that the combination of being black and female received the most negative results. The findings found bias on the part of the physicians. However, the study could not determine the form of bias. The study found that “bias may represent overt prejudice on the part physicians or, more likely, could be the result of subconscious perceptions rather than deliberate actions or thoughts. Subconscious bias occurs when a patient’s membership in a target group automatically activates a cultural stereotype in the physician’s memory regardless s of the level of prejudice the physician has."
K.A. Schulman and Others. The Effect of Race and Sex on Physician’s Recommendations for Cardiac Catheterization – New England Journal of Medicine Vol 340, No 8, (Feb. 1999)
Study 3 - A study on the effects of race perception in hiring due to social beliefs regarding names of African Americans. This study was published in November of 2002 and reflects data that employers, motivated solely by perceptions connecting the names to black potential employees adversely affected the number of callbacks for interviews. The study showed that even when the quality of resumes was improved, the resulting callbacks did not increase for persons who names associated them with being black, while the call backs for whites increased significantly when the quality of the resume improved. Marianne Bertrand and Sendhil Mullainathan, Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. – (Nov. 2002)
Study 4 - A recent study in Chicago tested the reactions of having minority jurors when dealing with a black defendant in a criminal case. The study showed not merely that a mixed race juror had a greater likelihood of acquitting the defendant, but that the accuracy of the facts found by the jury was far greater than that of the white only jury. This is further evidence that whites allow their perceptions of blacks to affect their view of the facts. Of course it could also mean there were racists on the jury panel, but that is only a possibility. It is far more probable that some or all of the white jury allowed negative perceptions of some degree to influence or filter their view of facts regarding the black defendant. (Unpublished Study, Sam Summers, 2005)
You can reach two conclusions from these studies. One, based on the previously 40 years of understanding discrimination, would suggest that every juvenile court officer and every doctor and every employer and every jury in each study was an overt racist or sexist. The second, and more likely scenario is that hidden or implicit bias in favor of whites and against blacks was at work and that the persons in these studies and the negative actions they are taking regarding blacks and women are motivated by the entire range of bias against those groups.
It is more likely that the officers and doctors and employers were making some subconscious, some conscious, some subtle, some stereotyped and some hateful assumptions about blacks, black families, black intelligence, criminal propensity, and character, and at the same time making favorable assumptions about whites and their character. However, regardless of the exact mental process, there is no question that the effect on the rights of minorities was real, harmful and something the Courts should be willing to help us prevent.