Elimination of Bias
Lauren Orr
Staff Attorney
Los Angeles County CSSD
Manuel Villegas
Staff Attorney
Los Angeles County CSSD
ELIMINATION OF BIAS
AGENDA FOR TODAY
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Characteristics of Bias
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Bias in the legal profession
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Bias in the IV-D Program
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Recognize and control Bias
ELIMINATION OF BIAS
Types of Bias
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Gender
Race
Sexual Orientation
Age
Disability
Culture
Social Status
Religion
Economic Status
ELIMINATION OF BIAS
Characteristics of Bias
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Bias - a tendency to believe that some
people, ideas, etc., are better than others
that usually results in treating some people
unfairly.
Merriam-Webster
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Bias - Prejudice in favor of or against
one thing, person, or group compared with
another, usually in a way considered to be
unfair.
Oxford English Dictionary
ELIMINATION OF BIAS
Why is this MCLE?
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CA Rule of Professional Conduct 2-400
– (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.
ELIMINATION OF BIAS
Characteristics of Bias
“A man cannot be prejudiced against
another without being biased against
him; but he may be biased without
prejudiced.”
Black’s Law Dictionary
ELIMINATION OF BIAS
Characteristics of Bias
Scientists estimate that we are exposed to as many as 11 million
pieces of information at any one time, but our brains can only deal
with about 40.
•
How do we deal with so much information and make
daily decisions?
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We do it by developing a perceptual lens that filters out
certain things and lets others in, depending on certain
perceptions, interpretations and biases that we have
adapted throughout our life.
ELIMINATION OF BIAS
Characteristics of Bias
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According to social cognition research, a fundamental
process of the human brain causes humans to categorize and
prefer people based on group identity.
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This all takes place within a fraction of a second
before we recognize that it is happening.
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This is known as our
unconscious bias.
ELIMINATION OF BIAS
Characteristics of Bias
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We make decisions every day regarding what is appropriate
or not, what is safe or not, and so on.
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The psychologist Joseph LeDoux suggests that this is an
unconscious “danger detector” that determines whether
something or someone is safe before we can even begin to
consciously make a determination.
ELIMINATION OF BIAS
Characteristics of Bias
Explicit v. Implicit Bias
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The word bias has a negative connotation, however
there are different types of bias.
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Traditionally, it was assumed that patterns of
discriminatory behavior in organizations are conscious.
•
•
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People who know better do the right thing.
Those who don’t cause bias.
As a result, a “good person/bad person” paradigm of diversity is
developed.
ELIMINATION OF BIAS
Characteristics of Bias
EXPLICIT BIAS
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Explicit biases are the result of intentional, conscious, and
controllable thoughts and beliefs.
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Explicit biases usually are directed toward a group of
people based on what is being perceived.
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An example of an explicit bias would be that all African
Americans are good athletes.
ELIMINATION OF BIAS
Characteristics of Bias
IMPLICIT (UNCONSCIOUS) BIAS
• Also known as implicit social cognition, implicit bias
refers to the attitudes or stereotypes that affect our
understanding, actions, and decisions in an unconscious
manner
• These biases, which encompass both favorable and
unfavorable assessments, are activated involuntarily
and without an individual’s awareness or intentional
control
ELIMINATION OF BIAS
Characteristics of Bias
IMPLICIT AND UNCONSCIOUS BIAS
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Residing deep in the subconscious, these biases are
different from known biases that individuals may choose to
conceal for the purposes of social and/or political
correctness.
ELIMINATION OF BIAS
Characteristics of Bias
IMPLICIT BIAS
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Implicit biases are pervasive. Everyone possesses
them, even people with avowed commitments to
impartiality such as judges.
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Implicit and explicit biases are related but distinct
mental constructs. They are not mutually exclusive and
may even reinforce each other.
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The implicit associations we hold do not necessarily
align with our declared beliefs or even reflect stances we
would explicitly endorse.
ELIMINATION OF BIAS
Characteristics of Bias
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Recently, psychologists have begun to look at what
role implicit associations play in our beliefs and
behavior.
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They have developed a tool called the Implicit
Association Test (IAT).
ELIMINATION OF BIAS
MALE
………………
……………...
………………
………………
………………
………………
………………
………………
FEMALE
John
Bob
Amy
Holly
Janice
Tom
Mike
Lisa
……………….
……………….
……………….
……………….
……………….
……………….
……………….
……………….
Assign each name to the category to which it belongs. Do it as
quickly as you can. Don’t worry if you make any mistakes
ELIMINATION OF BIAS
Male
Female
or
or
Career
Family
……………
Lisa
………………
……………
Matt
………………
……………
Laundry
………………
……………
Entrepreneur ………………
……………
John
……………….
……………
Merchant
………………
……………
Holly
……………….
……………
Kitchen
……………….
……………
Corporation
………………
……………
Parents
………………
This is an actual IAT. Take the test the same way as before
ELIMINATION OF BIAS
Male
or
Family
……………
……………
……………
……………
……………
……………
……………
……………
……………
……………
Female
or
Career
Lisa
………………
Matt
………………
Laundry
………………
Entrepreneur ………………
John
……………….
Merchant
………………
Holly
……………….
Kitchen
……………….
Corporation
………………
Parents
………………
ELIMINATION OF BIAS
Characteristics of Bias
Was this a lot harder? Most of us have a much stronger mental
association between maleness and career oriented concepts
than we do between femaleness and ideas related to career.
The IAT is administered by computer that measures your
responses down to the millisecond and those measurements
are used to assign the score.
www.implicit.harvard.edu
ELIMINATION OF BIAS
European American
Or
Bad
African American
Or
Good
__________
Hurt
___________
___________
Evil
____________
___________
Glorious
____________
___________
Wonderful
____________
ELIMINATION OF BIAS
European American
Or
Good
African American
Or
Bad
__________
Hurt
___________
___________
Evil
____________
___________
Glorious
____________
___________
Wonderful
____________
ELIMINATION OF BIAS
Characteristics of Bias
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80 % of those who have ever taken the test end up having
pro-white associations.
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It took them longer to complete answers when they were
required to put good words in the “Black” category than
when they were required to link bad things with black
people.
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Of the fifty thousand African Americans who have taken the
Race IAT so far, about 50% have stronger associations with
whites than with blacks.
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Does this mean that 80% of the test takers are racists?
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Does this mean that 50% of African American test takers
hate themselves?
ELIMINATION OF BIAS
Characteristics of Bias
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We generally tend to hold implicit biases that favor our own
ingroup, though research has shown that we can still hold
implicit biases against our ingroup.
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Implicit biases are malleable. Our brains are incredibly
complex, and the implicit associations that we have formed can
be gradually unlearned through a variety of debiasing
techniques.
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Interestingly, people who were given information about
civil rights leaders (MLK and Rosa Parks for example) prior to
taking the Race IAT scored African Americans more favorably
than previously.
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This is true regardless of the test taker’ race.
ELIMINATION OF BIAS
Characteristics of Bias
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Numerous studies have demonstrated that certain traditionally
disadvantaged groups are treated differently, to their detriment.
Some of these studies utilized IAT data whereas others were
done before the IAT was developed.
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The studies show the very real impact of bias in people’s actions
and inactions. No doubt many (if not most) of the people treating
others differently are unaware of doing so. This is implicit bias
playing itself out in everyday life.
ELIMINATION OF BIAS
Characteristics of Bias
In a study involving tipping cab drivers, the following findings
were made:
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White cab drivers were tipped 61% more than black drivers and 64%
more than other non-white drivers in the sample
Black passengers tipped white drivers 48% more than black drivers
White passengers tipped white drivers 49% more than black drivers
Latino passengers tipped white drivers 146% more than black
drivers
Black drivers were 88% more likely to be stiffed than white drivers
and white passengers were nearly twice as likely to stiff black
drivers than white drivers
Passengers of all races tended to round up for white drivers and
round down for black drivers
ELIMINATION OF BIAS
Characteristics of Bias
• A study of restaurant tipping showed that customers of
both races discriminated against black service
providers by tipping them less than white service
providers.
ELIMINATION OF BIAS
Characteristics of Bias
• In a study examining gender bias, identical scripts
were rated, some with the name of a female
playwright and others with the name of a male
playwright. The twist in these results was that it was
the female reviewers that revealed a bias.
• The female reviewers rated the script with the female
name significantly lower than the script with the male
name whereas male reviewers rated them the same.
ELIMINATION OF BIAS
Characteristics of Bias
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White undergraduates were videotaped while being
interviewed separately by white and black experimenters.
The subjects also completed a race attitude IAT. Those
subjects whose race IAT scores indicated strong implicit
preference for whites relative to blacks hesitated less and
made fewer speech errors when speaking to the white
experimenter than to the black experimenter.
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They also spoke to and smiled more a the white
experimenter than the back experimenter.
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These subtle and spontaneous behaviors suggested a
higher level of comfort interacting with the white
experimenter.
ELIMINATION OF BIAS
Bias in the legal profession
• 1875: Wisconsin Chief Justice says that “the
natural law destines and qualifies the female sex
for the bearing and nurture of children of our race
and for the custody of the homes of the world…”
• 1879: First female admitted to practice before U.S.
Supreme Court.
• 1944: U.S Supreme Court accepts first female law
clerk (for Justice Douglas).
• 1950: Harvard Law School accepts first female
student.
ELIMINATION OF BIAS
Bias in the legal profession
• 1960: Only 3% of attorneys are female.
• 1972: Washington and Lee is the last law school to
accept female students.
• 1981: Sandra Day O’Connor is first female Justice
appointed to U.S. Supreme Court.
• 1993: Janet Reno becomes first female U.S. Attorney
General.
• 1996: ABA elects first female president.
ELIMINATION OF BIAS
Bias in the legal profession
Justice O’Connor
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Top graduate of Stanford Law School in
1952.
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A large California firm offered her only a
secretarial position.
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She refused the job and instead took a job
as a deputy county attorney.
ELIMINATION OF BIAS
Bias in the legal profession
Justice Ginsburg
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Top graduate of Columbia Law
School in1959.
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She did not receive a job offer from
any New York firm.
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Some law firms said she should
apply to work as a secretary.
ELIMINATION OF BIAS
Bias in the legal profession
Justice Kagan
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In 1986 graduated first in class at
Harvard Law School.
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In 1988 became law clerk for Justice
Marshall.
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In 2003 named first female Dean of
Harvard Law School.
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In 2009 named first female Solicitor
General.
ELIMINATION OF BIAS
Bias in the Legal Profession
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73% of female attorneys reported gender bias in legal
workplaces as a major or moderate problem.
The four examples of gender bias women agreed occurred most:
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70% - comments are made about the physical appearance or apparel
of female attorneys when no such comments are made about male
attorneys.
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69% - asked if they are attorneys when male attorneys are not.
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61% of women somewhat or strongly disagreed that they are able to
advance as far as male attorneys in the legal profession.
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67% of female respondents perceived there was less gender bias
against women today than over the preceding five years.
ELIMINATION OF BIAS
Bias in the Legal Profession
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Women comprise:
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54% of population
47% of law students
31% of all lawyers
–
44% of law firm associates
20.2% of law firm partners
17% of equity law firm partners
ELIMINATION OF BIAS
Bias in the Legal Profession
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1865: First African-American admitted to practice before U.S. Supreme
Court.
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1868: Harvard Law School accepts first African-American student.
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1948: U.S. Supreme Court accepts first African-American law clerk (for
Justice Frankfurter).
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1961: Reynaldo Guerra Garza is first Hispanic-American to be
appointed to the Federal Bench (Southern District of Texas).
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1967: Thurgood Marshall is first African-American Justice appointed to U.S.
Supreme Court.
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1971: Herbert Young Cho Choy is first Asian-American (Korean-American)
to be appointed to the Federal Bench (9th Circuit).
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1994: Billy Michael Burrage is first Native-American to be appointed to the
Federal Bench (District of Oklahoma).
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2002: ABA elects first African-American president.
ELIMINATION OF BIAS
Bias in the Legal Profession
Justice Marshall
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He was the grandson of a slave.
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Denied admission to the University of
Maryland Law School because he was
African-American.
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Attended Howard University Law School
and graduated first in his class in 1933.
ELIMINATION OF BIAS
Bias in the Legal Profession
Justice Sotomayor
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In 1978, Firm of Shaw, Pittman, Potts &
Trowbridge suggested during recruiting
dinner she was at Yale only as a result of
affirmative action
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Formal complaint filed with law school
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Firm’s apology in December of 1978 made
news in the Washington Post
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In 1991, first Hispanic federal judge in New
York / first Hispanic female judge in U.S.
ELIMINATION OF BIAS
Bias in the Legal Profession
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77% of minority attorneys reported racial bias in legal
workplaces as a major or moderate problem.
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63% of minority attorneys believe current law school
graduates of color do not have the same opportunity for
employment in legal community as Caucasian graduates.
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31% of minority attorneys reported they have been
denied employment, equal pay, benefits, promotion, or another
employment related opportunity within the past five years.
ELIMINATION OF BIAS
Bias in the Legal Profession
• Minorities comprise:
30% of population
20% of law students
• 10% of all lawyers
4% African-American
3.3% Hispanic
2.3% Asian
.2% American Indian
• 20% of law firm associates
7% of law firm partners
14% of corporate attorneys
8% of Fortune 500 General Counsel
ELIMINATION OF BIAS
Bias in the Legal Profession
One Catalyst study examined the experiences of women of
color at law firms, comparing their experiences to people
of color’s experiences and white women’s experiences.
The findings included:
Women of color were more likely than any other group to experience
exclusion from other employees, racial and gender stereotyping.
Women of color were most likely to consider leaving the firm.
Women of color cited dissatisfaction with current level of work relative
to work experience, and with access to high-profile client assignments.
Women of color perceived a lack of commitment from senior leadership
towards promotion of diverse candidates.
ELIMINATION OF BIAS
Women in Corporations
Fortune 500 General Counsel
Women 21.0%
Men 79.0%
Caucasian African American Hispanic Asian American/ Pacific Islander
81.9%
10.5%
5.7%
1.9%
Middle Eastern
0%
ELIMINATION OF BIAS
Fortune 501-1000 General Counsel
Women 16.8%
Men 83.2%
Caucasian
African American Hispanic
91.7%
7.1%
1.2%
Asian American/ Pacific Islander
0%
Middle Eastern
0%
ELIMINATION OF BIAS
Judicial Clerks
Percent of
Clerkships
Obtained By:
All Clerkships Federal
Clerkships
State
Clerkships
Local
Clerkships
Men
49.0%
54.3%
45.2%
45.7%
Women
51.0%
45.6%
54.8%
54.3%
ELIMINATION OF BIAS
Women in the Judiciary
Representation of United States Federal Court Women Judges
Type of Court
Total # of Seats
Women
% of Women
United States
Supreme Court
9
3
33.3%
Circuit Court of
Appeals
169 active
56
33.1%
Federal Court
Judges in the
U.S.
1,874
451
24.1%
ELIMINATION OF BIAS
Type of Court
Total # of Seats
Women
% of Women
State Final
Appellate
Jurisdiction Courts
361
116
32%
State Intermediate
Appellate
Jurisdiction Courts
977
316
32%
State General
Jurisdiction Courts
11,049
2,768
25%
State Limited &
Special Jurisdiction
Courts
5,072
1,596
31%
All State Court
Judges in the U.S.
17,489
4,711
27%
ELIMINATION OF BIAS
Total Representation of Women - Federal & State Judgeships
Women 27.1%
Men 73.9%
ELIMINATION OF BIAS
Weekly Salary Men vs. Women Lawyers
ELIMINATION OF BIAS
Bias in the IV-D Program
•
The previous study has significant implications for Title-IV
case workers and attorneys.
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If a case worker is less comfortable with an individual of a
different race and background, and therefore less able to
establish rapport, the ability of the case worker to provide
satisfactory customer service may be compromised.
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If an attorney is less comfortable interviewing a case
participant because of their race and background can that
compromise the attorney’s ability to fairly evaluate the case
and present the case in court?
ELIMINATION OF BIAS
Bias in the IV-D Program
• Attorneys and case workers have to struggle all the
time to avoid biases. It is difficult not to impose our
biases (explicit and implicit) on how we conduct an
interview and work up a case.
ELIMINATION OF BIAS
Bias in the IV-D Program
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A parent comes to court for a downward modification and
says he hasn’t been able to find a job in ten years. Then you
interview the other parent who tells you that “he was always
a bum” and told her “he would never pay her a penny in child
support.” The obligor is on GR and not disabled.
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Does the race of the obligor (relative to your race) affect how you
prepare this case for hearing? (Do you argue for a job search order or
agree to set support at $0?) How much information do you try to
gather from the obligor? How much time do you spend on this case?
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Does the obligor’s gender (relative to your gender) affect how you
prepare this case for hearing? What if the obligor was a women? (Do
you argue for a job search order or agree to set support at $0?) How
much time do you spend on this case?
ELIMINATION OF BIAS
Bias in the IV-D program
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A custodial parent (female) is interviewed and starts crying
because she doesn’t have enough money to support the
children. You then interview the father and he starts crying
when he is told how much he must pay for child support
because he can’t afford it.
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Do you treat them both the same? Will the race of either parent have
an affect on how much sympathy you have for the parent? Will you
double check your guideline calculation if the obligor was Black,
Latino or White?
ELIMINATION OF BIAS
Bias in the IV-D Program
•
You handle a case where one father has six cases with six
women and another case where the father has six children
with one woman.
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Before you interview anyone or check CSE, have you made a
presumption about the race of the parties?
ELIMINATION OF BIAS
Bias in the IV-D Program
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You have a obligor who has filed a modification because he is
a minimum wage earner and can’t afford his bills. He then
tells you that his new girlfriend is pregnant.
or
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You have a female obligor who can’t pay support because
she is aided with other children in her home.
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Does your gender make a difference? A brief survey of staff in our
office reveals that men are more sympathetic to female obligors
while women lawyers are not.
ELIMINATION OF BIAS
Bias in the IV-D Program
• You receive a request for upward modification review
from a female obligee. Her current child support
order is $2000.00 for one child. The obligee does not
work. The obligor recently obtained a promotion and
makes 10% more income.
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You’re a female case worker and a single parent.
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How much of a priority is this modification request? Would
it make a difference if you are a male case worker?
ELIMINATION OF BIAS
Bias in the IV-D Program
•
A case worker plays Christian religious music in her cubicle
all day long. A Muslim co-worker in placed in the next
cubicle. The Muslim co-worker complains.
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Is it bias to treat him or her in a special manner due to their
religious preferences?
ELIMINATION OF BIAS
Bias in the IV-D Program
• A case worker is in a wheel chair and, during an
interview, she is asked if she needs special
accommodations due to her condition. The case
worker is offended by the question.
• Is the interviewer biased or being considerate?
ELIMINATION OF BIAS
Bias in the IV-D Program
• A case worker is assigned to the call center or the
reception area and has a very heavy accent, to the
extent that it is difficult to understand them.
• Is it biased to transfer them into position where there
is less contact with the public?
ELIMINATION OF BIAS
Recognize and Control Bias
Constant exposure to negative stereotypes or negative
information about certain ethnic groups has a subconscious
effect on persons exposed to this information.
•
Only until 2013 did the U.S. Census stop listing “Negro” as an option.
•
In 11/14 the Army officially ended the practice that allowed service
personnel to be addressed as “Negro.”)
•
Using analytic word count software, Emory University evaluated
hundreds of crime reports in major newspapers from 2000-2012 in
order to measure the presence of the term “Black.” The software
also measured the presence of over 300 negative emotion words
(e.g. violent, hatred and enemy).
•
The use of the term “Black” was positively associated with a
negative emotional tone in the article.
ELIMINATION OF BIAS
Recognize and Control Bias
• Constant exposure to negative stereotypes or negative
information about certain ethnic groups has a
subconscious effect on persons exposed to this
information.
• Lack of diversity creates a void in positive information
about non-white ethnic groups.
• People may still express a belief in racial equality but
their subconscious associations do not match up with
their expressed views.
• Exposure to different ethnic groups tends to negate the
negative associations with those groups.
ELIMINATION OF BIAS
Recognize and Control Bias
Defining Diversity
“In its broadest context, diversity is defined as recognizing,
appreciating, valuing, and utilizing the unique talents and
contributions of all individuals regardless of age, career
experience, color, communication style, culture, disability,
educational level or background, employee status, ethnicity,
family status, function, gender, language, management
style, marital status, national origin, organizational level,
parental status, physical appearance, race, regional origin,
religion, sexual orientation, thinking style, speed of
learning and comprehension, etc.”
Society for Human Resource Management
ELIMINATION OF BIAS
Recognize and Control Bias
Why Promote Diversity?
• Good for business
– Diverse attorneys bring valuable attributes to their organizations
• Bring in talent
– What makes a successful attorney is not immediately discernable from
a resume, transcript or twenty-minute interview
• Maintain talent
– Creating a diverse environment can help prevent turnover / reduce
recruiting expenses
• Reduce legal risk
– Failing in diversity can mean more workplace lawsuits
ELIMINATION OF BIAS
Recognize and Control Bias
Los Angeles County CSSD
The statistics for the attorney staff is below:
Non-white – 52.2%
Female – 74.4%
Department wide
Non-white – 85.6%
Female – 81.6%
ELIMINATION OF BIAS
Final Thoughts
•
Recognize that it is impossible to escape having biases.
•
Confront and be aware of your biases and predispositions.
•
Practice identifying your biases.
•
Acquire information regarding the individual rather than
identifying them with a group.
•
Test your assumptions by asking questions.
•
Give people who are different from you the same benefit of
the doubt that you would give to someone in your own
ingroup.
•
Communicate with sensitivity to differences and use both
receptive and expressive skills.
CONTACT
Lauren Orr
Lauren_Orr@cssd.lacounty.gov
Manuel Villegas
Manuel_Villegas@cssd.lacounty.gov