North Carolina Racial Justice Act repealed.
The trailblazing statute which allowed inmates to use state and county statistics as well as other evidence to show race played a role in their sentencing. has been repealed. Implicit bias was a direct subject of testimony in the two orders previously issued under the Act; both decisions converted death sentences to life in prison without parole. From 2009 until repeal, almost all prisoners facing death sentences had sought review.
By Alison Cook and Christy Glass
Women and Top Leadership Positions: Towards an Institutional Analysis
Gender, Work and Organization (March 2013)
In an interesting confluence of research on gender and diversity, authors find that diversity in leadership contributes to successful women leaders:
"Women remain under-represented in top leadership positions in work organizations, a reality that reflects a variety of barriers that create a glass ceiling effect. However, some women do attain top leadership positions, leading scholars to probe under what conditions women are promoted despite seemingly intractable and well-documented barriers. Previous scholarship tends to posit individual-level explanations, suggesting either that women who attain top leadership positions are exceptional or that potential women leaders lack key qualities, such as assertiveness. Much less scholarship has explored institutional-level mechanisms that may increase women's ascension to top positions. This analysis seeks to fill this gap by testing three institutional-level theories that may shape women's access to and tenure in top positions: the glass cliff, decision-maker diversity, and the saviour effect. To test these theories we rely on a dataset that includes all CEO transitions in Fortune 500 companies over a 20-year period. Contrary to the predictions of the glass cliff, we find that diversity among decision makers—not firm performance—significantly increases women's likelihood of being promoted to top leadership positions. We also find, contrary to the predictions of the saviour effect, that diversity among decision makers increases women leaders' tenure as CEOs regardless of firm performance. By identifying contextual factors that increase women's mobility, the paper makes an important contribution to the processes that shape and reproduce gender inequality in work organizations." [From the authors' abstract]
By Bill Hathaway
Working with very young children and their favorite foods and hand puppets, researchers found in children a surprising affinity for those whose likes were the same and an equally surprising animosity toward children with differing tastes.
By Mahzarin R. Banaji & Anthony G. Greenwald
Amazon describes the book as follows: I know my own mind. I am able to assess others in a fair and accurate way. These self-perceptions are challenged by leading psychologists Mahzarin R. Banaji and Anthony G. Greenwald as they explore the hidden biases we all carry from a lifetime of exposure to cultural attitudes about age, gender, race, ethnicity, religion, social class, sexuality, disability status, and nationality. “Blindspot” is the authors’ metaphor for the portion of the mind that houses hidden biases. Writing with simplicity and verve, Banaji and Greenwald question the extent to which our perceptions of social groups—without our awareness or conscious control—shape our likes and dislikes and our judgments about people’s character, abilities, and potential…. brilliant, authoritative, and utterly accessible, Blindspot is a book that will challenge and change readers for years to come.
A new report by the Kirwan Institute at Ohio State University, State of the Science: Implicit Bias Review 2013, reviews research on implicit bias in three key areas, Education, Health Care, and Criminal Justice; there is also a section on debiasing. This is a great compilation for anyone interested in this emerging area of law and science.
"The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked,“You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal? Calhoun, who is African-American, claims that the prosecutor’s racially charged question violated his constitutional rights. Inexplicably, however, Calhoun’s counsel did not object to the question at trial.. . .There is no doubt, however, that the prosecutor’s question never should have been posed. 'The Constitution prohibits racially biased prosecutorial arguments.' McCleskey v. Kemp, 481 U. S. 279, 309, n. 30 (1987). Such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant’s right to an impartial jury."
Rochat v. L.E.K. Consulting 2013 Mass. App. Unpub. LEXIS 88 (Massachusetts state case alleging gender bias)
The following overview provided by Charna Sherman, Charna E. Sherman Law Offices and Cynthia Calvert, CT Calvert & Associates:
Rochat received excellent reviews at first. She started working with a male supervisor, Henkes, who made repeated sexist remarks to her in an attempt to get a rise out of her. He then bad mouthed her to his superiors and gave her a bad performance review. Instead of giving her a chance to improve, or letting her stay on until the end of the year so she could get her bonus, she was viewed as a problem employee with an attitude problem (even though her earlier reviews had praised her attitude and professionalism) and was terminated after the review and told to leave the premises immediately. At the summary judgment stage, LEK argued its legitimate, nondiscriminatory reason for terminating her: a bad employee with a bad attitude, as demonstrated by her bad review.
Excerpts from the opinion:
However, even if a company relied on its performance evaluation process, that process itself might be infected by the bias of those performing the evaluations. . . .
Rochat paints a picture of a male-dominated work culture at LEK. There was only a single female partner in the Boston office. . . Although the unexplained absence of women in high level positions at the firm is hardly dispositive (given that there might be valid explanations for this), it is a factor the jury could consider. . .
Rochat offered evidence that Henkes was a decision maker, that he influenced other decision makers, and that he acted in a belittling manner toward her based on her gender. The motion judge characterized Henkes's 'that's a typical female thing to do' remark as 'overtly sexist.' However, she ultimately discounted the import of that remark, concluding that 'Henkes's isolated and ambiguous remark is insufficient, standing alone, to prove pretext or discriminatory intent.' Even putting aside the fact that Rochat offered the specific comment as but one example of remarks that Henkes regularly made, we believe that the judge engaged in fact finding that should have been left to the jury. Put differently, a jury reasonably could have concluded -- based on the summary judgment record -- that Henkes's comments and needling behavior revealed a gender biased attitude that negatively affected Rochat's evaluation. . . .
While this case doesn't involve women lawyers, it is certainly relevant to the glass ceiling in the legal industry and to the several pending cases involving women lawyers who allege they were given unfairly poor evaluations before being terminated.
Order Granting Motion for Appropriate Relief, North Carolina v. Robinson, 91 CRS 23143 at 30 (N.C. Super. Ct. Apr. 20, 2012) and Order Granting Motions for Appropriate Relief, North Carolina v. Golphin, at 92, 97 CRS 47314-15 (Golphin), 98 CRS 34832, 35044 (Walters), 01 CRS 65079 (Augustine) (N.C. Super. Ct. Dec. 13, 2012)
These orders under the North Carolina Racial Justice Act vacated and converted to life without parole the death sentences of convicted murderers based on findings of both deliberate and unconscious race discrimination including “that race was, in fact, a significant factor in the prosecution's use of peremptory strikes during jury selection.” These lengthy opinions by Judge Weeks documented the kind of impermissible use of peremptory strikes and pretextual explanation others have criticized. Judge Weeks also considers in detail the significance of unconscious implicit bias, offering, for example, a detailed discussion of inconsistencies between evidence of bias and self-reporting among prosecutors.
Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2012)
By Jerry Kang, Judge Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson, and Jennifer Mnookin
This recent article by some of the thought leaders in the field of implicit bias and the law offers a cumulative review of the topics and follows them along two strands of legal analysis, criminal and employment law.
Long-Term Reduction in Implicit Bias: A Prejudice Habit-Breaking Intervention, J. Experimental Social Psychol. 48, 1267-1278 (2013)
By Patricia G. Devine, Patrick S. Forscher, Anthony J. Austin, and William T.L. Cox
In this groundbreaking social science article, Dr. Devine and her colleagues describe a debiasing intervention approach (with psychology students) with demonstrated success.
This small study finds that "that science faculty at six leading universities were more inclined to hire and mentor male undergraduate degree applicants over female applicants when reviewing identical resumes where the only difference in credentials was the gender assignment." This follows similar research on resumes generally with names associated with certain genders and races and ethnicity.
The NAWL Foundation®, the research part of the National Association of Women Lawyers (NAWL), released the results of its National Survey of Women’s Initiatives: The Strategy, Structure And Scope Of Women’s Initiatives In Law Firms. The report notes four key points: “First, women are far less likely to be equity partners than men. Second, women are not credited as rainmakers at the same rates as men. Third, women are not typically in positions of firm-wide leadership. Fourth, women are not compensated by firms at the same level as men: men out-earn women at every level beyond associate." The report then observes, “Women’s initiatives have been sponsored by firms, starting about 10 years ago, with the general purpose of providing innovative policies, practices and structures for advancing women in law firms. Yet, what such initiatives actually do, and the impact they have on women in firms, is all too often not clear and at worst, open to criticism bordering on cynicism."
By Hon. Donovan W. Frank and Brian N. Aleinikoff
The lead story in the Federal Lawyer, the magazine of the Federal Bar Association discusses a blind juror and how that juror was perceived initially and as the trial and deliberations proceeded. While the article does not mentions implicit bias explicitly as such, the description of the juror and jury's experience offers a good sense of how stereotypes worked and were changed through exposure. The article includes a good history of the question of individuals with disabilities serving on juries, the ADA, the "impediments" faced by individuals with disabilities in jury situations, and a broader review of the value of diversity.
Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2012).
By Jerry Kang, Judge Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson and Jennifer Mnookin
Written by a combination of leading scholars and practitioners, this article offers a great summary of the emerging information on implicit bias as it relates to courts. The authors explain that they sought to explore how, if at all, courts should and can move to a better model of human decision-making that reflects the emerging scientific data. After summarizing the underlying science on implicit biases, they review two areas or “trajectories” where this information is particularly salient in court proceedings: 1) steps of the criminal litigation process and 2) employment discrimination litigation. The authors suggest several possible “interventions” for judges and juries to help mitigate the effects of implicit biases.