How Implicit Bias Affects Our Work and Work Environments KAREN G. SINGER OLSON & OLSON LLP

1. DISCRIMINATION 2.0: IMPLICIT BIAS How Implicit Bias Affects Our Work and Work Environments KAREN G. SINGER OLSON & OLSON LLP

2. WHAT IS IMPLICIT BIAS • Recognized by U.S. Supreme Court as “unconscious prejudices and disguised animus that escape easy classification as disparate treatment”; and “covert and illicit stereotyping” ; Justice Kennedy in Tex. Dept. of Housing & Community Affairs v. Inclusive Communities Project, 135 S.Ct. 2507 (2015) (a disparate-impact case). • Attitudes and stereotypes that affect our understanding, actions and decisions in an unconscious matter. • Biases that are activated involuntarily without awareness or intentional control. • A hot topic because approaches to eliminate discrimination and increase diversity have not worked

3. The Lizard Brain Response • “the most primitive part of our brain, where the instincts that warn us of danger when it lurks reside” ; a/k/a the amygdala • The amygdala is the part of the limbic system responsible for processing emotions – allows us to react to a threat immediately and automatically without the rest of the brain processing information

4. Our Lizard Brains, con’d. • A lizard only has the limbic system for its brain function – fight, flight, feeding, fear, freezing up, and reproduction [Psychology Today, “Your Lizard Brain”, 4/22/2014; Joseph Troncale M.D.] • Jury consultants and plaintiffs’ attorneys rely on the lizard brain for jury selection and argument • Reptile: The 2009 Manual of the Plaintiffs Revolution, by David Ball and Don C. Keenan: plaintiffs’ attorneys should demonstrate to jurors the dangers posed by the actions of the defendants • Aka the “Reptile Strategy”

5. HOW ARE WE BIASED • Protected class: race, religion, national origin, age, sex • Non-mutable characteristics: height, weight, place of birth/upbringing, disability • Studies show that height affects men’s income • Journal of Applied Psychology – every inch above average worth $789 more per year in 2004 • Study based on CDC in 2008 found 2.9% and 3.2% for men/women above average height • Height implies authority • Studies show that weight affects income • Study based on CDC in 2008 overweight men earn 9.5% more than normal weight males; overweight women earn 18% less than normal weight women • CDC looked at impact of obesity on income with data from 2011 to 2014 • Mutable characteristics: clothing, tattoos, schools attended, law review/clerkship, marital status

6. ORIGINS OF BIAS • Parents • Experience • E.g.: one bad meal and will no longer eat that type of food • Lizard Brain • Fear of unfamiliar • Quick decision-making • Self-serving and confirmation bias: giving more attention to anything that supports or confirms an already established viewpoint • Media • Advertising

7. MANIFESTATIONS OF BIAS • Micro-aggressions • Affinity bias • Unintended offense • Work – Pay/Promotions/Assignments

8. WHAT ARE MICRO-AGGRESSIONS • “The brief and everyday slights, insults, indignities and denigrating messages sent to people of color by well-intentioned white people who are unaware of the hidden messages being communicated.” DeraldWingSue, Ph.D., Microaggressions in Everyday Life, Psychology Today, 2010. • Subtle comments or actions that devalue others. • Examples: • Talking over someone • Not listening when someone is speaking • Recognizing everyone in the room equally, e.g., shaking some but not all hands • Dismissive behavior, e.g., eye rolling, sarcasm • Inclusion – invitations extended to all? Is everyone invited to your sports team/event? Will the event selection unintentionally appeal to some but not all?

9. UNINTENDED OFFENSE • Words that hurt without intent • “Where are you really from”: implies the person is an alien, or not American • “You are so articulate”: implies an expectation that people of that person’s race/ethnic group are not educated or articulate • Asking an Asian-American to assist with a math or science problem: implies all Asians are good in math/sciences

10. Microaggressions continued • “I don’t see color”: denies a person’s racial/ethnic experiences • Store owner following a customer of color around the store: implies that person is a criminal • Women holding their purses closer when a Black or Latino person approaches: implies that person is a criminal

11. IMPLICIT BIAS AT WORK • AFFINITY BIAS • E.g.: hiring people who remind us of ourselves, even if other applicants more qualified • Can stem from internal referrals • Also affects assignments and opportunities • CONFIRMATION BIAS • The tendency to search for or remember things that support a pre-existing belief or way of working. Results in resistance to change and persistence of inaccurate beliefs. • E.g., inability to change theory of the case, despite new evidence; • Dismissing experts whose opinions are contrary to our position • Ex.: Orchestral selections – females increased with blind auditions 5% female musicians in 1970; increased to 25% by 1997 with blind auditions • Ex.: Legal brief – study of law firm partners who reviewed and rated legal writing skills lower when told author was a minority

12. IMPLICIT BIAS AT WORK • JURY SELECTION • We associate income, job, and education with ability to judge facts fairly • Jurors bring their own biases based on experiences JUDGES’ BIAS • Law firms • Male/Female – since 2005, 85% of US Supreme Court clerks have been white; twice as many males, even though females out number male law students • Older/younger • Dress • Political bias • Sentencing – Judge Gilmore recently gave a presentation on implicit bias in sentencing – efforts to reduce disparity in sentences not working • OUR ADVERSARIES • schools attended, law review, clerkships, years of experience • CLIENTS

13. “YOU CAN’T CHANGE WHAT YOU CAN’T SEE” • Report prepared for the ABA Commission on Women in the Profession and the Minority Corporate Counsel Association; authors from U.C. Hastings College of the Law • - Concluded that diversity tools relied on have not been effective • Based on 2016 survey of 2,827 in-house and law firm attorneys • Compared reported experiences of women of color, men of color, white women and white men

14. ABA REPORT, CON’T. • Women of color reported they had been mistaken for administrative or court staff or janitorial staff 50 percentage points higher than white men • White women reported this bias at 44 percentage points higher than white men • Men of color reported this bias 23 percentage points higher than white men • All women reported bias against mothers – passed over for promotions, lower-quality assignments, less pay

15. ABA REPORT, CONT’D. • Bias reported in following areas: • Hiring • Performance evaluations • Assignments • Networking opportunities • Pay disparity – in-house and law firms • Promotions • Sexual harassment – reported by 25% of women • 70% of all groups reported hearing sexist comments, stories and jokes

16. ABA Study, cont’d. The executive summary is free and online at: • https://www.americanbar.org/content/dam/aba/administrative/women/you-cant-change-what-you-cant-see-print.pdf

19. WHAT CAN WE DO? • AWARENESS • Project Implicit: Implicit Association Tests for age, race, gender, disability, religion, etc. bias • https://implicit.harvard.edu/implicit/selectatest.html • ELIMINATE GOSSIP – contributes to stereotyping • INCREASE DIVERSITY • USE METRICS – e.g.: hiring processes – qualifications waived for some not others? Interviewers’ ratings consistently in favor of some? • REMOVE EXTRACURRICULAR ACTIVITIES FROM RESUMES: country vs. classical music • REMOVE DEMOGRAPHIC INFORMATION,NAMES FROM RESUMES • USE BIAS INTERRUPTERS • BiasInterrupters.org – toolkits for eliminating bias • ABA REPORT –EXECUTIVE SUMMARY - suggestions

20. DIVERSE ENVIRONMENTS • Lead to diversity in: • Ideas • Approaches • Innovations • Growth