1. Understanding bias — Defined



Understanding and Eliminating Bias;Applying Cognitive Sciences to Understand and Manage Bias Santa Clarita Bar Association, June 22, 2016by Myer J. Sankary, Esq. myersankary@ Christine.Goodman@pepperdine.edu1. Understanding bias — Defined What is Bias?In its simplest definition, bias is a personal disposition, mind-set, attitude, preference based on a pre-existing belief system either for or against another individual or group expressed in a way that may be viewed as unfair to the persons or group against whom bias is exhibited or to unfairly favour an individual or group resulting in a unfair advantage. Bias can come in many forms and is often considered to be synonymous with?prejudice?or?bigotry. Cognitive bias has been studied by social psychologists since the early 20th century and focuses on information processing, thinking and decision making systems of the brain. The human mind evolved to understand the world by creating categories. Survival depended on the ability to make the right choices (often immediately and automatically without deliberative thought) such as choosing a mate, choosing friends and others who could help you and your family, choosing food that was nutritious and satisfying and avoiding people, animals, and foods that posed a danger. To survive it was important to decide quickly whether a stranger was a potential threat or friend. Over generations, preferences known as “in-group,” “out-group” or “my-side” biases became an automatic thought process. As modern society evolved, people were connected to many in-groups such as family, communities, regions, religious affiliations, schools, colleges, professions, sport teams, racial and ethnic groups, and political affiliations. A bias naturally favored the group you were part of and disfavored those persons and groups with whom you were not affiliated. Some social psychologist believe that bias and prejudice arise from an early uncritical mindset . Once we have formed a mindset as a youth without thoughtful examination of our beliefs at a time when critical thinking and reasoning has not matured, we learn to behave mindlessly toward others in the out-group. Ellen Langer, the first woman tenured at Harvard in clinical and social psychology found that bias and prejudice arise from “premature cognitive commitments.” In her book Mindfulness (1989) she concluded that humans apply patterns acquired in the early childhood period without reflection to later events and encounters. These patterns become “mindless behavior” – as though on automatic pilot. As a result, we tend to make generalizations such as “All women are”…; “all blacks are…”; all Catholics/Baptists/Jews/Mormons/Moslems are…;” “all liberals are…”, all conservatives are…”Most of us grew up and spent time with people like ourselves. However, when we confronted someone who was different, we dropped the assumption of commonality and looked for differences – we looked for negatives in people who were in the out-group. Early attempts to learn about others may have led to a falsified view of the world and we cling to those beliefs as we mature. Prejudice arises from judgments about others that was premature, not based on adequate knowledge about the other and often inaccurate. We then generalize from our experience from a few encounters with persons in the out-group, and then create a stereotype impression that everyone who is a member of that out-group has behavioral characteristics that we find offensive or objectionable. In general, when bias is a matter that affects the personal life of an individual such as preferring a Mercedes over a Cadillac, little or no harm can arise from such a preference. However, when a person in power has the ability to impose penalties to deprive someone of his life or liberty, such as a judge or jury, or deny large groups of persons equal rights by their judgments, then it is essential that the person in authority make a decision based on the objective evidence without regard to one’s status, race, religion, gender, age, sexual preference, or other group identification. The more discretion a judge has in making a decision, such as in family law, the more room there is for bias to arise. There is a fundamental belief in this country based on the Constitution that everyone should be treated equally under the law and the law should provide equal protection regardless of what group you may belong to. 2. Implicit Social Cognition – the science of implicit bias;Since the 1990’s hundreds of studies by social psychologists have provided us with extensive insight into the nature of bias both explicit and implicit. It is estimated that less than 20% of the population today would overtly express explicit bias - such language is generally condemned as “politically incorrect” with consequences of losing one’s position. But studies have shown bias still exist in more subtle forms that are unknown to most people. Through new forms of testing, scientists have demonstrated that implicit or covert bias is pervasive and is often difficult to detect. In the 1990’s, Anthony Greenwald, a psychology professor at the University of Washington, developed a new test that revealed implicit bias through the use of the implicit association test (IAT). He collaborated with Mahzarin Banaji, a professor of psychology, who was then at Yale, to expand the test to include ways of detecting biases in many different categories such as gender, sexual preference, age, disability, ethnicity, race, etc. Eventually, these tests were put on the internet and can be found at implicit.harvard.edu . Over 4.5 million people have taken the test and it has been validated by many social scientists. Research contained on the website compared two types of bias shown below that still exist in American society:EXPLICIT BIAS IntentionalExpressedFully awareAnimus toward othersConscious DeliberativeIMPLICIT BIAS UnawareUnconsciousNot intentionalBias is deniedImmediate judgmentIntuitiveReactiveIn a recent law review article, the authors state that implicit bias “..refers to the subconscious associations we make between a particular object and the meanings we attach to it?…” “…implicit biases result in automatic associations between an individual’s race and corresponding stereotypes and attitudes… we now know that implicit bias predicts actual behavior.”?In Blindspot, the authors ask “Are Americans Racist?” They describe briefly the history before 1930, that lynching of Black Americans averaged between fifty and a hundred per year. They also point out that before the Civil Right Act of 1964, many states had laws permitting or requiring segregation of black from whites in public places such as schools, buses, hotels, bathrooms and restaurants and prohibited inter-racial marriages. The movie “42” relates the ordeal of Jackie Robinson as the first black professional baseball player in America. The Tuskegee Airman movie illustrates the treatment of Black airmen during WWII. Recent movies like “The Butler” and “12 Years a Slave” also have brought to conscious awareness the oppressive existence for blacks in America. In 2012, Cambridge University Press published a comprehensive collection of articles by experts who have studied bias across the legal system and society in a book entitled, Implicit Racial Bias Across the Law, edited by Justin D. Levinson and Robert J. Smith. These articles demonstrate how bias exists in almost every area of law and society from a social science perspective, including property law, criminal law, torts, employment law, health law, education law, corporations law, tax law, intellectual property, environmental law, Federal Indian Law, and capital punishment. There are hundreds of cases in which innocent black defendants were convicted but were exonerated based on DNA evidence after spending as much as 30 years in prison. Some of the important findings of the Implicit Association testing as reported on the website are:1. “Implicit bias is largely automatic and is based on the characteristic in question (gender, skin color, age, sexual orientation). It operates so quickly, in the relevant tests, that people have no time to deliberate. It is for this reason that people are often surprised to find that they show implicit bias. Many people say in good faith that they are fully committed to an antidiscrimination principle with respect to the very trait against which they show a bias.” 2. The validity of the Implicit Association Test has been supported by numerous scientists. Over 4.5 million have taken the tests since 1998 with over 15,000 tests completed each week. The studies show that bias exists outside of conscious awareness or outside of conscious control.3. Implicit biases are pervasive. They appear as statistically "large" effects that are often shown by majorities of samples of Americans. 75-80% of self-identified Whites and Asians show an implicit preference for racial White relative to Black. 4. People are often unaware of their implicit biases. Ordinary people, including the researchers who direct this project, are found to harbour negative associations in relation to various social groups (i.e., implicit biases) even while honestly (the researchers believe) reporting that they regard themselves as lacking these biases. 5. Implicit biases predict behavior from acts of friendliness and inclusion to hostility and exclusion – e.g., Zimmerman vs Trayvon Martin (stand and defend laws) to more serious acts such as the negative evaluation of work quality. 6. People differ in levels of implicit bias. Implicit biases vary from person to person - for example as a function of the person's group memberships, the dominance of a person's membership group in society, consciously held attitudes, and the level of bias existing in the immediate environment. This last observation makes clear that implicit attitudes are modified by experience.7. Those with higher levels of implicit bias have been shown to display greater discrimination.Query: Was Donald Sterling’s behaviour for which he was sanctioned by the NBA expressly biased or implicitly biased? He denies that he is racially biased.Was Cliven Bundy’s comment expressly or implicitly biased that blacks were better off as slaves than today because they are dependent on the government welfare? He denies that he is racially biased. 3. The Effects of bias in the legal system.1. Unfair application of law depending on bias of the jury or judge; Undermines trust and confidence of the public in the legal system2. Denies due process and equal protection to racial minorities, the poor, the homeless.3. Creates perception that system is not fair.4. Results in denial of access to jobs and promotions5. Results in conviction of the innocent6. The guilty remain free and often commit more serious crimes.4. The Effects of bias in society a.Dehumanization of the other — in extreme forms can lead to holocaust and genocideb.Discrimination – denial of rightsc.Prevents equal opportunityd.Prevents fair and equal treatment in determination of disputesg. Creates distance in social groupsh. Adverse impact on relationships 5. Law and Disorder – Bias and Cognitive Dissonance (Tavris & Aronson, Mistakes Were Made (but not by me) at pages 127-157. a. Conviction of numerous innocent persons – how is it possible?b. Exoneration of over 300 convicted persons, some of whom spent up to 30 years in prison, some on death row. See . 187 of those exonerated were black, 21 Latinos, 86 Caucasians. c. The Central Park Five – Five black and Hispanic teenagers (14, 15 and 16) gave coerced confessions, despite no physical evidence linking them to the crime. They were convicted and sent to prison from 10 to 12 years, until the real perpetrator confessed. Despite the perpetrator’s confession and DNA evidence linking him to the crime, original prosecutors and police investigators vigorously protested vacating the conviction of the 5 boys. They refused to believe the boys were innocent because they had confessed. d. Reasons for wrongful convictions – mostly motivated by bias (preconceived judgment)i. Police and prosecutors believe that innocent men are never convicted despite DNA proof of factual innocence. Cognitive dissonance makes it impossible to admit their mistakes and to recognize new evidence contrary to their firmly held belief. The Self-Justification phenomenon prevents them from acknowledging that they were responsible for convicting an innocent person. ii. Improperly obtained false confessions.iii. Prosecutor misconduct – withhold of exonerating evidence.iv. Faulty eye-witness testimonyv. Bias of investigating officers – making snap decision of guilt or not – some police end up “testilying”vi. Unvalidated or improper forensic science. vii. Biased informantse. Rationale for Court decisions-implicit gender bias? In June 2014, the United States Supreme Court ruled that corporations can deny contraceptive coverage in employer provided health insurance plans mandated by the Affordable Care Act, if the employer has religious beliefs against birth control. The religious beliefs of the closely-held corporate entities (as expressed through their officers and owners) trump the family planning rights of the women who are their employees based on the majority’s interpretation that the mandate violates the Religious Freedom Restoration Act, a federal statute. The dissent (joined in part by all female members of the Court) recognizes that women’s abilities to participate equally in society depend in part on their ability to control their reproductive lives, that access to affordable birth control is a cornerstone of that control, and that this decision significantly impinges on those rights. Women and men are differently situated in terms of the risks of unplanned pregnancies and equal opportunity may require differential access to birth control.f. Rationale for enforcement of the laws-national origin and ethnicity bias? In the spring and summer of 2014, another immigration crisis manifested as scores of unaccompanied children, along with some families, entered the United States, undocumented, in an effort to flee crime, gangs and poverty in Honduras, Guatemala and El Salvador. Calls to send the children back may reflect a bias against immigrants from the Americas, whom many deem to be unworthy, without regard for their potential status as asylum seekers based on the conditions in their home countries. g. When the laws and courts conflict-sexual orientation and identity bias? On a more positive note, courts have increasingly upheld the rights of lesbian, gay, bisexual and transgender persons, both before and after the United States decisions in Windsor and Perry, overturning state statutes and ballot measures that restrict gay marriage. Public opinion about the propriety of gay marriage, as well as the perception of the rights of gays and lesbians in society, have changed dramatically in the past several decades, which is reflected in the state legislation and ballot measures that have approved gay marriage. Nevertheless, manifestations of bias against LGBT individuals occur explicitly, in organizations like the Boy Scouts, as well as implicitly in many workplaces. That said, in July, 2014, the president signed an executive order to prohibit discrimination based on sexual orientation and gender identity in federal contracting. 6. How to manage bias in our lives and law practiceA. The 5 Competencies of Emotional and Social Intelligence – Daniel Goleman, Self-awareness: The ability to accurately recognize one's emotions and thoughts and their influence on behavior. This includes accurately assessing one's strengths and limitations and possessing a well-grounded sense of confidence and optimism.Self-management: The ability to regulate one's emotions, thoughts, and behaviors effectively in different situations. This includes managing stress, controlling impulses, motivating oneself, and setting and working toward achieving personal and academic goals.Social awareness: The ability to take the perspective of and empathize with others from diverse backgrounds and cultures, to understand social and ethical norms for behavior, and to recognize family, school, and community resources and supports.Relationship skills: The ability to establish and maintain healthy and rewarding relationships with diverse individuals and groups. This includes communicating clearly, listening actively, cooperating, resisting inappropriate social pressure, negotiating conflict constructively, and seeking and offering help when needed.Responsible decision making: The ability to make constructive and respectful choices about personal behavior and social interactions based on consideration of ethical standards, safety concerns, social norms, the realistic evaluation of consequences of various actions, and the well-being of self and others.B. Concrete Strategies for Managing Bias Identify Settings for BiasThe first goal is to reduce the incidents of bias in your practice. This is where the self-awareness competency becomes important—so that we can acknowledge and assess the way our individual biases, preconceived notions and working generalizations impact our behavior in certain situations. Take a moment throughout the day to analyze your response to people and situations you encounter. Ask yourself whether your reaction has more to do with your own thought processes rather than with the actual behavior that you have experienced. This exercise will be particularly useful in comparing your reactions responses to similar behaviors exhibited by different people you encounter. Identifying instances of potential bias will help you take steps to reduce them, in your own actions as well as in the actions of your colleagues and co-workers. The next step is to take a wider view, and ask yourself and others whether there are institutional structures or expectations that have a divergent impact on those from diverse backgrounds. For instance, does adherence to certain “credentials” severely constrict recruiting from diverse groups? Determining which of these credentials are job-essential versus which are simply desirable-- or no longer necessary at all-- can provide some additional band width for expanding recruiting efforts. Some organizations may wish to create an ad hoc reduction of bias committee to identify situations of potential bias in hiring, retention, promotion, and client interactions from both the staff and professional perspectives. Focus on InclusionA second goal is to model inclusive behavior. Focusing on inclusion not only values diversity and relationships, but also helps to create a space where all truly feel valued and welcome. When leaders create a climate where all can contribute, where all Ideas and input are treated with equal respect, all can feel welcome to be a part of the team. One way to model this behavior is to rotate leadership opportunities for committees and events, and to bring more voices into every conversation at meetings, strategy sessions and client communications. Mentoring and affinity groups can be created to disperse opportunities to a diverse group of lawyers by encouraging cross-affinity events and those with multiple target audiences. Building bridges between and among affinity groups will lessen the isolation that some majority and minority attorneys report. In planning these activities, think about who is being invited to attend, and who is missing from the guest list. Whose voices are being heard at the meeting, and who is simply present at the table? Are some expected to remain silent- implicitly or explicitly, due to their identities or backgrounds? Be mindful to specific invite their contributions, even when you think no invitation is necessary, because the extra effort and concern demonstrates that inclusion matters, which is far better than simply saying it matters.Perhaps the most important tool for modelling inclusion is civility. Civility requires listening to others with recognition of the possibility that they are right and we are not. We all have different conceptions of expected conduct in the workplace, e.g., from tolerant (looking up from your work when a junior colleague walks in, to welcoming (greeting the junior colleague with a smile, saving your document on the computer, stepping out from your desk and sitting next to the person to give them the help they are seeking) to sacrificing (taking a moment to email your spouse to say you’ll be late for dinner because a colleague--rather than a client--needs you now, realizing that you will have to bring home some additional work or come in extra early to finish by your deadline or stay late and order dinner in). Many of us have different levels or ranges of expectations of civility, from “not being rude,” to engaging in affirmative pleasantries, to politeness in word and deed, to being so accommodating that the other person feels indebted and perhaps resentful, and apply these levels to different people. Consider the applying one level of civility to all of your interactions with your colleagues and co-workers, instead of varying the level with the rank and experience, or perceived importance, of the person you are encountering. Treating interns and clerks with the same level of respect as named partners and clients, will effectively model inclusive behavior. Effectively Address DiscordA third goal is to become more effective at dealing with the inevitable conflicts that will arise as you pursue diversity and inclusion efforts in your practice. Empathy is an important tool for addressing discord. Put yourself in the other person’s shoes, whether they be loafers, pumps or high heels. Think about how you think the other person will react to your comment or criticism or job action. What might they think is the basis for your action? Why might they think it is based on race or ethnicity, gender or gender identity? Is it, in some small way, perhaps implicitly? Take a few moments to make a serious effort to see things from the other person’s perspective.Another useful tool is to assume goodwill. There will be times when all of us will question whether a particular action, outburst, or decision was influenced by an improper bias. But no one wants to be called “racist” or “sexist” or “homophobic.” In the professional context, it is important to begin from a place of assuming goodwill. Assume that the person is trying to do their best, and is trying to behave appropriately instead of proceeding from the assumption that everyone is acting out their biases at every opportunity. Even with these tools, there will be situations where tempers flare or feelings are trammelled. One way to effectively address discord is a very simple approach: Listen, then ask questions, and only after receiving those answers do you make any statements. Listen to the conflict, problem, concern issue, then ask questions to obtain more information to assess the situation more deliberately, rather than off the cuff. Hearing answers to your questions before issuing a decision --about who is right and who is wrong, whose opinion is more valued, or whose perspective will be privileged and whose will be disregarded or minimized in the grander scheme—will reduce the perception of bias and minimize discord along the way. That said, there are times when action is required. In those situations, it is important to identify the problem, concern or issue, offer an explanation of why the comment or behavior was inappropriate, and then explore alternative processes that minimize the influence of biases and generalizations in future interactions. For the long-term success of the organization, it is often more beneficial to take the time and energy to preserve the relationship, rather than permitting the parties to depart “agreeing to disagree,” and moving on unless some cooling-off time is needed by one or both parties before any effective communication can resume. 7. California Rules of Professional ConductRule 2-400. Prohibited Discriminatory Conduct in a Law Practice. (A) For purposes of this rule:(1)"law practice" includes sole practices, law partnerships, law corporations, corporate and governmental legal departments, and other entities which employ members to practice law;(2)"knowingly permit" means a failure to advocate corrective action where the member knows of a discriminatory policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and(3)"unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public.(B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in:(1)hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or(2)accepting or terminating representation of any client.(C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred… California Code of Judicial Ethics provides in part as follows: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status." In an effort to accomplish such a result, "judges are trained to be sensitive to problems of bias.ConclusionIt is hoped that the reader will find in this article sufficient reasons for understanding the importance of MCLE programs on Understanding and Eliminating Bias in the Legal Profession and will support the expansion of the program to include understanding bias generally within our society. By expanding programs to understand the cognitive science of bias, lawyers will gain a greater insight into their own beliefs, attitudes and perspectives which inform their decisions, judgments and behaviours. And through our own self-awareness, we can become more effective advocates and trusted advisors on behalf of our clients. It is also hoped that elimination of bias programs will be accepted as an essential and beneficial insight into the way lawyers understand their own thinking, judgments and behaviour toward others. Perhaps more than 1 hour of required bias training every three years would be useful. ................
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