Spotlight on Implicit Bias

  • Spotlight

Is Justice Really Blind? Race and Appellate Review in U.S. Courts

Abstract: “In this paper, I use two new data sets to demonstrate that black federal judges are consistently overturned on appeal more often than similar white judges. The effect is robust and persists after taking into account previous professional and judicial experience, educational backgrounds, qualification ratings assigned by the American Bar Association, and differences in partisanship. This study is the first to explore how higher-court judges evaluate opinions written by judges of color, and it has clear implications: despite attempts to make judiciary more reflective of the general population, racial disparities within the legal system continue to persist.”


The Influence of Daughters

Maya Sen et al., "Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues?" The answer is yes. See also the New York Times piece, Adam Liptak, "Another Factor Said to Sway Judges to Rule for Women’s Rights: A Daughter," NY Times, June 16, 2014. 


Implicit Bias in Judicial Performance Evaluations: We Must Do Better Than This

Judicial performance evaluations (JPEs) are a critical part of selecting judges, especially in states using merit-based selection systems. This article shows empirical evidence that gender and race bias still exist in attorney surveys conducted in accordance with the ABA’s Guidelines. This systematic bias is related to a more general problem with the design and implementation of JPE surveys, which results in predictable problems with the reliability and validity of the information obtained through these survey instruments. This analysis raises questions about the validity and reliability of the JPE. This is a particularly poor outcome, as it means that we are subjecting many judges to state-sponsored evaluations that are systematically biased against women and minorities. Download here.


Evidence Of Racial, Gender Biases Found In Faculty Mentoring

"Research found faculty in academic departments linked to more lucrative professions are more likely to discriminate against women and minorities than faculty in fields linked to less lucrative jobs." Read more at NPR.org.


More Kirwan, Implicit Bias State of Science Review

Year two of a great compilation and annotation on this topic. Read the 2013 report.


Implicit Bias and the Death Penalty

Professor Justin Levinson and his colleagues highlight importance of implicit bias in death penalty cases. Read more.


Who's "Bossy"?

Sheryl Sandberg Is Right — Data Shows Women Are Called 'Bossy' More Than Men

How Stereotypes Impair Women’s Careers in Science

In How Stereotypes Impair Women’s Careers in Science authors Ernesto Reuben, Paola Sapienza, & Luigi Zingales (from Columbia Northwestern and Chicago Business Schools respectively) describe a hiring experiment where employers select employees with arithmetic skills that are on average handled equally well by men and women. With an equal number of men and women in the pool, without any information other than the candidates’ appearance (which makes gender clear), both male and female employers held lower expectations of women’s performance and were more likely – twice as likely—to hire the male rather than the female candidate. With some more information—what the authors call “Cheap Talk,” letting the candidates predict and self-report their results—same results. With actual information—how the candidates performed on the task in the past—employers are still more likely to hire the man, now 1.5 times as likely. When they choose the lower-scoring candidate, it was the male applicant two-thirds of the time. In the experiment, the employers were rewarded based on the quality of their picks, leading the authors to expect different results than those that were found. The authors connect the found results to Implicit Association Test IAT results re: stereotypes of women and science.

How Stereotypes Impair Women’s Careers in Science

In How Stereotypes Impair Women’s Careers in Science authors Ernesto Reuben, Paola Sapienza, & Luigi Zingales (from Columbia Northwestern and Chicago Business Schools respectively) describe a hiring experiment where employers select employees with arithmetic skills that are on average handled equally well by men and women. With an equal number of men and women in the pool, without any information other than the candidates’ appearance (which makes gender clear), both male and female employers held lower expectations of women’s performance and were more likely – twice as likely—to hire the male rather than the female candidate. With some more information—what the authors call “Cheap Talk,” letting the candidates predict and self-report their results—same results. With actual information—how the candidates performed on the task in the past—employers are still more likely to hire the man, now 1.5 times as likely. When they choose the lower-scoring candidate, it was the male applicant two-thirds of the time. In the experiment, the employers were rewarded based on the quality of their picks, leading the authors to expect different results than those that were found. The authors connect the found results to Implicit Association Test IAT results re: stereotypes of women and science.

The Presence of Female Conveners Correlates with a Higher Proportion of Female Speakers at Scientific Symposia

Next time you are at a meeting or presentation, do your own experiment. Decide on your group of focus. Count the number of your group compared to other group(s). Count who speaks. See if your result mirrors the researchers. This may well be more than “small potatoes” in terms of career paths.

The Superbowl Ad You Didn't See

The Superbowl ad you didn’t see: take a minute view the commercial released for the Super Bowl by the National Congress of American Indians, http://www.diversityinc.com/news/super-bowl-ad-didnt-see/.


Harvard Business School Dean Admits Unequal Treatment of Women

Harvard Business School Dean Admits Unequal Treatment of Women: Dean Nitin Nohria: “The school owed you better, and I promise it will be better.” Read the article.


Study Proves Subconscious Bias Against Dark-Skinned Blacks

Study Proves Subconscious Bias Against Dark-Skinned Blacks: The research continues to be disturbing; here study shows implicit bias for associating lighter skin with intelligence. Read the article.


Best Practices for Integrating Diverse and Women Laterals: Interesting summary of ideas and suggestions re: implicit bias and micromessaging.

By Jeremiah A. DeBerry is U.S. Director of Diversity & Inclusion at Mayer Brown in New York.


A Cautionary Tale: How Unconscious Biases Can Deliver Flawed Medical Judgments

By Lauren Stiller Rikleen, Rikleen Institute for Strategic Leadership

Another disturbing story with horrible consequences. Read the article.


Pantene Phillipines Advertisement

This Pantene Phillipines advertisement is a great illustration of perception: http://www.youtube.com/watch?v=kOjNcZvwjxI. Perhaps it helps explain the disappointing numbers on women associates reported by the National Law Journal? In any case, well worth watching!

Lawyers trail other professions in diversity

Also in the National Law Journal Karen Sloan writes that Microsoft has released a report this month observing that lawyers trail other professions in diversity; indeed the numbers have decreased since the last census. Seems like the news here is that it is NOT new news. The question as to why the legal profession's progress is so slow remains. Manifestation of implicit unintended biases the answer? Read the article

How To Fight Racial Bias When It's Silent And Subtle

By 

In the popular imagination and in conventional discourse — especially in the context of highly charged news events such as the shooting of Trayvon Martin — prejudice is all about hatred and animosity.
Scientists agree there's little doubt that hate-filled racism is real, but a growing body of social science research suggests that racial disparities and other biased outcomes in the criminal justice system, in medicine and in professional settings can be explained by unconscious attitudes and stereotypes.

United States v. Diaz-Arias, No. 11–2271 (1st Cir. Apr. 29, 2013)

Courtesy of Michael Dean and Sixuan Lu, CJS: Around the Circuit.

During a jury trial, the Hispanic defendant proposed a specific jury instruction regarding race and ethnicity bias. The district court declined to give the proposed instruction, but instructed the jury to consider the evidence in fair and impartial manner. Defendant was convicted of conspiring to distribute cocaine. The defendant appealed alleging error in the district court’s refusal to provide the jury with his requested instruction on race, ethnicity, national original, and immigration status.
Held: There was no legal basis for reversible error in the district court’s decision to forgo using the requested instruction.
A district court’s refusal to provide a requested instruction is reversible error only when the requested instruction (1) is substantively correct; (2) is not substantially covered elsewhere in the charge; and (3) concerns an important point in the case so that the failure to give the instruction would seriously impair the defendant’s ability to present his defense. See United States v. Willson, 708 F.3d 47, 54–55 (1st Cir. 2013).
In this case, Defendant’s request failed the second prong of the test. Without listing the examples of concern, the district court’s decision to use a general term such as “prejudice” does not constitute reversible error. Its instruction effectively incorporated the proposed instruction and more expansively told jurors that they were not to use any form of prejudice. Additionally, there is no constitutional presumption of juror bias either for or against members of any particular racial or ethnic groups. See Rosales–Lopez v. United States, 451 U.S. 182, 190 (1981). Moreover, Defendant proposed voir dire questions that went directly to the issue of prejudice on account of race, ethnicity, national origin and immigration status. He did not argue that the district court refused to ask the venire those questions. Finally, the jurors did not demonstrate any evidence of prejudice towards him during the course of the proceedings.

Racial Impact

Oregon has enacted new Racial Impact Statement legislation (Senate Bill 463) that would require the Oregon Criminal Justice Commission to comment, when asked by legislators from both major political parties, on affect of proposed legislation on racial composition of Oregon’s prison population. In Oregon, blacks are 2% of the population and 9% of the prison population. (Iowa and Connecticut also have racial impact statement legislation.) [As reported by The Sentencing Project].

Judical Evaluation

In response to criticism that judicial evaluation methods show implicit bias and over reliance on stereotypes as to race and gender, Jennifer K. Elek (NCSC) and her colleagues have published Judicial Performance Evaluation: Steps to Improve Survey Process and Measurement. For more on the topic, see Natalie Knowlton & Malia Reddick, Leveling the Playing Field: Gender, Ethnicity, and Judicial Performance Evaluation, recommending that “Bar associations and court systems should take steps to raise awareness of, and promote education about, the potential for implicit biases to influence thoughts and decisions.”

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.

Diversity Contributes to Women Leaders

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]

Infants prefer individuals who punish those not like themselves, Yale researchers find

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.

Blindspot: Hidden Biases of Good People

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.

Implicit Bias Excellent Research Cumulation

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.

Justice Sotomayor: Bongani Charles Calhoun v. United States

"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.

Women Studying Science Face Gender Bias, Study Finds

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.

National Survey of Women’s Initiatives

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."

Juries and the Disabled, The Federal Lawyer (December 2012)

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.