The following is a guest blog post by Dawn Silberstein, a San Francisco attorney whose practice areas include insurance coverage, construction defect, and equal employment law. Ms. Silberstein became interested in the impact of implicit bias while studying psychology at the University of California, Santa Cruz.
As attorneys, we want to see ourselves as fair, equitable, and rational, yet studies show that despite our best intentions none of us is free from bias. Implicit bias refers to unconsciously held bias that doesn’t necessarily reflect our conscious beliefs. Here’s a brief look at how implicit bias is measured, how it impacts our decision making, and what we can do about it.
How is implicit bias measured? Because implicit bias is based on unconscious preferences for certain groups, psychologists can’t measure it by asking study participants to give their reactions or opinions. Instead, psychologists measure implicit bias by looking at the reaction time of participants asked to associate different words or pictures with a racial group or other category. A quick reaction time denotes an easy association and longer reaction time a harder association.
The most widely recognized test of implicit bias is the Implicit Association Test (IAT) conducted by Project Implicit, a research website operated by Harvard University, Washington University, and the University of Virginia.
How does implicit bias impact decision making? Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Studies show that implicit bias can affect how we make decisions about the people we hire, the people we leave on juries, and the testimony we believe.
The impact of implicit bias on decision making has been shown in numerous studies, for example:
- Researchers sent identical resumes to employers and found a 50% drop in interview callback rates for the applicants when they changed the names on the resumes from Emily and Greg (signaling European ancestry) to Lakisha and Jamal (signaling African ancestry).
- Study participants shown photos of black and white American men with neutral facial expressions perceived the black face to be more hostile than the white face, and the participant’s implicit bias as measured by the IAT correlated to the degree of hostility the participant perceived.
- Partners reviewing the identical third-year associate memorandum rated the memorandum higher and found fewer errors when the associate was identified as white than black.
What can we do about it? The first step in confronting implicit bias is awareness. Go to Project Implicit and take an IAT. Acknowledging that we’re susceptible to bias motivates us to take steps to reduce its impact on our decision making. Studies show that
- visualizing counterstereotypic images such as strong female leaders or positive black role models reduced implicit bias scores over a 24-hour period, and can reduce the impact of unconscious bias when conducting interviews or depositions;
- reciting counterstereotypic words while imagining black, Asian, female, and other “out-group” faces also reduced implicit bias scores and can reduce the impact of implicit bias on your perception of an interviewee;
- redacting the names of applicants before screening resumes reduces the likelihood that the race or gender of the applicant will impact evaluation of the applicant’s qualifications; and
- explaining the basis for your hiring decisions to others reduces the likelihood implicit bias will impact decision making.
The important takeaway is not that bias is bad or that people who have bias are bad people. We all have bias. As attorneys, it’s particularly important that we be aware of our own unconscious bias and take steps to reduce its impact on our decision making.
On implicit bias and addressing racial bias in court, get CEB’s FREE program Racial Justice Litigation, including 1 hour MCLE credit for Elimination of Bias. On eliminating bias in the legal profession, check out CEB’s programs Bias and the Lavender Bar: LGBT Identities and Beyond and Eliminating Bias in ADR, both available On Demand. And get guidance on making hiring guidelines and avoiding legal pitfalls in CEB’s Advising California Employers and Employees, chap 1.
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