Why Should We Care About Our Biases?
If we are litigators, these biases can impact how we pick juries, how we assemble our legal team, how we prepare our cases, how we deal with our clients and witnesses, and how we interact with our colleagues. As a judge, I work to ensure that the decisions I make, including credibility decisions, and the sentences I give out are based on appropriate facts, and not implicit biases of which I may not even be aware.
In a work-place environment, unconscious biases can affect hiring and promotion decisions, work assignments, and career tracks, and unfortunately can end up a part of harassment, hostile work environments, and discrimination law suits. These biases can also cause problems and damage relationships, as well as affect the reputations of businesses. In addition, these implicit biases have deadly consequences when they affect such individuals as police officers, who must assess situations quickly and make life-and-death decisions—decisions that may be the result of an implicit bias.
These biases can be incredibly painful for the victims of the biases. One of my dear friends who is a district court judge, formerly a public defender, shared a story with a group of lawyers. He told them how, as an African-American public defender in the courtroom, there were a number of occasions where judges and other lawyers and staff would ask him where his lawyer was, assuming that because he is an African-American, he must be the defendant in the case. The people who made those assumptions weren’t necessarily racist or prejudiced, but there was clearly an implicit bias at work. As he shared this story, tears streamed down his face. Another friend of mine who is Hispanic shared his experience in court 15 years ago and being asked by a judge whether he spoke English (simply because of his last name). Regardless of the intent behind these questions, the pain was palpable for both of these individuals.
Is It Possible to Overcome Our Implicit Biases?
How do we recognize and interrupt our own biases? First, we must be willing to admit we have biases. The more we convince ourselves how unbiased we are, the more of a blind spot we may have when it comes to recognizing our own implicit biases. A great place to start is by taking the Harvard Implicit Association tests (Project Implicit). These are on-line tests that are designed to measure implicit biases in about 28 different categories. Although the results may be shocking at first, the science suggests that the test is absolutely valid.
We must also recognize that the old adage, “trust your gut,” may not prevent us from recognizing implicit bias. We must focus on how we form opinions about people. Sometimes it means asking ourselves whether our opinions would be the same if the person were a different race, gender, or religion or dressed in a different manner. In other words, would our opinion be the same if the individual were part of a different group? Studies suggest that we are most at risk of making a decision that is the result of an implicit bias when we are tired, under stress, and pressured to make quick decisions. How many lawyers do we know who fit that description? We may not be able to control how much sleep we get, or how much stress we feel, but we can control how quickly we make decisions that could be the result of an implicit bias.
Although we must be willing to identify and interrupt our own biases, we must also recognize and be willing to interrupt bias in others. This is probably the most difficult and the most uncomfortable part of overcoming bias.
The challenge with others is determining when to say something, how to say it, and to whom. I make every effort not to address another’s bias in front of other people. I try to find a place to talk in private, and perhaps begin the conversation with something like, “I know you didn’t mean to make me (or another person) feel bad, but I need to share with you the effect that those words or actions had.” I know it is easier said than done, but if someone isn’t made aware that he or she has a particular bias, it will only continue to cause pain to another individual or group of individuals and could lead to significant problems for the employer or organization.
Finally, in terms of specific steps we can take when interrupting bias, it is important to remember that biases develop at a young age and are often the result of our tendencies to surround ourselves with people who are the most like us. In fact, research indicates that we tend to perceive anyone different from us as a threat because our brain tells us to do so. “The capacity to discern ‘us from them’ is fundamental in the human brain,” wrote David Amodio, associate professor of psychology and neural science at New York University, in his 2014 paper, “The Neuroscience of Prejudice and Stereotyping.” However, that doesn’t mean that we can’t begin to recognize and overcome our implicit biases. Here are some suggestions:
- Be aware of your initial thoughts about people and upon what those thoughts are truly based
- Stay attuned to people around you and notice how often you engage in conversations with people who are different than you
- Surround yourself with a diverse mix of cultural and social situations and individuals
- Share your own experiences of bias with others
- Educate others about the elements of an inclusive work, school, and community environment
- Look for commonalities that exist regardless of race, religion, gender, culture, etc.
- If you see something, say something, hopefully in a manner that is sensitive to the feelings of everyone involved
- Don’t assume bad intent
- Slow down your decision-making process
The reality is that we all say things or do things that we wish we could take back. Unfortunately, the tendency is to pretend that it wasn’t said, or that it didn’t happen, or hope that perhaps the person didn’t hear it. But it did happen, we did say it, and the person did hear it, so acknowledge it, apologize, MOVE on AND CHANGE. My experience has been that most people truly appreciate it and can move on when someone acknowledges a misstep and apologizes for it.
Finally, by challenging ourselves to identify and overcome our own implicit biases, and to help others recognize their biases, we can begin to lay the foundation for harmonious and productive work and personal environments.