Equality In The Workplace
Understanding implicit bias and opportunities to minimize its effect.
By Brian Sanford
What Is Implicit Bias?
“[I]mplicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”1 The U.S. Supreme Court recognized the concept of implicit bias in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project:
Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.2
You Can Test For It
Tests have been developed to determine if someone shows signs of implicit bias. The most famous is the Implicit Association Test, or IAT. Anyone can take one of the tests from a university website; for example, Project Implicit at implicit.harvard.edu. The test judges a person’s reaction time to associations of good and bad to characteristics such as race, gender, religion, and skin tone, among others. Many are surprised at the results of their tests. A majority of people taking the test show evidence of implicit bias, suggesting that most people are implicitly biased even if they do not think of themselves as prejudiced.3
Here is a table showing results from the Harvard University IAT as between European-Americans and African-Americans:4
Examples of Efforts to Minimize Bias
Vivienne Ming, a neuroscientist, calculates that women in the U.S. technology industry pay a “tax” of between $100,000 and $300,000 over a lifetime because of implicit bias against women in the technology sector. The tax, she says, is the cost of being different: “[Y]ou have to go to better schools for longer and you have to work for better companies to get the same promotions, to get the same quality of work.” In scientific terms, it is heat loss to the economy.5
The evidence shows that it is very hard for a person to remove this bias alone. It’s taken a lifetime to build up and create. It cannot be taken down over night. The effects of the bias, however, can be reduced significantly if roadblocks or safety measures are put in place. Experimentally, it is controlling for the extraneous and independent variable. In the case of discrimination, it involves controlling for the protected class.
Justice Ruth Bader Ginsburg gives the example of the change that orchestras have had in the past 40 years. She said that when she was growing up, she never saw a woman in a symphony orchestra.
Critics, including a well-known critic for the New York Times, swore that they could tell the difference between a woman playing the piano and a man, or the violin. Someone said, “Well, let’s put a blindfold on him and see how good he is at identifying auditioners as male or female.” Put to the test, he was all mixed up. Then someone came up with a brilliant idea: “Let’s drop a curtain so the people who are conducting the audition will not see the person who is auditioning.” Literally overnight, women began to get positions in symphony orchestras in numbers.6
More recently, Starbucks closed about 8,000 stores across the country for an afternoon of racial bias education, including discussions on implicit bias, after the arrest of two black men sitting together in a Philadelphia store’s cafe minding their own business.7
Recognition of implicit bias may have its largest initial legal relevance in disparate impact cases. The Equal Employment Opportunity Commission has pursued consent decrees prohibiting or monitoring the use of criminal background check guidelines.8 The purpose is to determine and eliminate any disparate impact criminal background checks have on women and minorities.9
The “Rooney Rule” is a National Football League policy that requires league teams to interview ethnic-minority candidates for head coaching and senior football operation jobs.10 The policy is named after the late Pittsburgh Steelers owner Dan Rooney, who chaired a committee to study a report by Johnnie Cochran about the dismal lack of minority coaches.11 The rule has had a significant effect and has been expanded to include general manager jobs and front-office positions.12 Companies such as Facebook and Xerox, among some municipalities, have adopted a form of the rule.13
Daniel Kahneman, Nobel Memorial Prize in Economic Sciences winning author of Thinking, Fast and Slow, tells of the time the Israeli military requested his help with interview protocols for selecting fighter pilots.14 He wanted to guard against the halo effect of characteristics, such as good looks, so he used specific, uniform questions designed to reveal kinds of behavior and had the interviewers rate each behavior on a scale from 1 to 5. The process was so successful in increasing the quality of fighter pilots that the Department of Defense summoned him to explain his methods.15
Opportunities for Solutions
Acknowledging the existence of implicit bias is the first step in minimizing its effect. Opportunities abound for those who are searching for proactive protocols to solve the problem. The benefits are not only egalitarian, they also include an increase in quality and efficiency, such as the examples of performance at higher levels in orchestras or fighter pilots, and savings for those of a particular merit who compete for positions and success without regard to irrelevant characteristics.TBJ
is a plaintiff’s trial lawyer with the Sanford Firm in Dallas, specializing in employment cases. He is a board member and former president of the Texas Employment Lawyers Association.