While waiting at a bus stop, you hear police sirens growing louder. Suddenly, an older model Ford sedan speeds past, followed by a squad car. Loud music blares from the sedan; the driver throws a brick-sized package wrapped in brownish paper out of the window. Seconds later, the driver jumps from the still moving car. Two police officers rush up and tackle the driver.
Describe the driver. Male or female? White, Hispanic, Asian, or Black? How old? What was the driver wearing? What about the police officers—males, females, or one of each? Were they white, Hispanic, Asian, or Black? Fit or overweight? What about the package? Illegal drugs or something else?
As you read the opening paragraph, your mind formed a mental picture, giving life to indeterminate images and filling in details missing from the story. Nothing divulges the race, age, build, or gender of the driver or police officers. Yet your mind visualized their identities. This kind of subconscious stereotyping is known as “implicit bias.”
Implicit biases alter the way we all interact, socialize, and perceive members outside of our racial, ethnic, gender, economic, and religious circles. Beware—implicit bias has a grip on our minds so strong and fierce that nothing will eliminate it. We cannot just think implicit bias away or expect to control it by reading articles like this one.
According to an authority on implicit bias, “The most widely held misconceptions about implicit biases are that ‘they affect other people but not me’ and that it’s possible to eliminate these biases with relatively simple interventions. These are both assertions that lack empirical support in research of the last 20 years.” Indeed, to loosen the sticky pull of implicit bias, we must stay motivated and willing to persist at understanding and controlling it.
This article provides an overview of implicit bias to acquaint judges and lawyers with the phenomenon, and then offer proactive steps to counter, minimize, and neutralize its potential to harm. As you read this article, remember that resisting implicit bias requires adopting multiple strategies. It also requires discipline, patience, and time.
Implicit bias is everywhere. It comes from “stereotypical associations so subtle that people who hold them might not even be aware of them.” Examples abound: Connecting Black people to violent crime or men to corporate leadership, deeming female lawyers as less aggressive than male lawyers, or crediting Asians as good at math.
Implicit bias and explicit bias differ. Explicit bias involves attitudes and beliefs that we accept as fact and reveal through intentional actions; implicit bias involves attitudes and beliefs that are triggered automatically without mental awareness. When the prosecution removes people of color from a jury on the basis of their race, that is explicit bias. So is making racist or homophobic jokes or statements.
Unlike explicit bias, implicit bias operates behind the scenes, in seclusion, where we don’t notice it affecting our thoughts and decisions. Implicit bias has been referred to as a “hidden brain,” which, unbeknownst to our conscious selves, colors our perceptions of life. “We all have biases—this is a way for us to process and organize information. . . . Bias does not make you prejudiced. It makes you human.”
Nevertheless, saying someone has implicit bias is often misunderstood as a polite way to call someone a racist, sexist, or homophobe. Consider the Vice-Presidential debates in which then-Governor Mike Pence took issue with Senator Tim Kaine’s references to implicit bias. “Senator, please,” Pence said, “enough of this seeking every opportunity to demean law enforcement broadly by making the accusation of implicit bias every time tragedy occurs.”
To Pence, “implicit bias came across as an insult, a put-down on par with branding police as racists. Many Americans may hear it as academic code for ‘racist.’ But that connotation does not line up with scientific research on what implicit bias is and how it really operates.”
Picture an apple. Most imagine a round, shiny, red fruit. But not all apples are round and red. Some apples are bell-shaped; others have yellow or green skin. To most of us, the typical “apple” is “red” and “round” because when the concept of an apple was introduced to our infant brain, the baby book depicted a round, shiny, red object. When we learned to read, the flashcard that read “A is for Apple” pictured a round, shiny, red object. And when we ate our first apple, we heard “apple,” and then were handed a slice of a round, shiny, red object. Through constantly reinforced patterns, our young mind associated the term “apple” with its common characteristics: “round,” “shiny,” and “red.”
As we grew, we began sorting people too, usually by race, gender, age, and physical appearance, among other traits. We attribute qualities to people based on common perceived characteristics. This is because our brain “automatically associates certain characteristics with specific groups that are not accurate for all the individuals in the group….” These biases are so ingrained in our brains, we do not think about what we are saying or doing while we say or do it. Like riding a bike, reading, or recognizing an apple.
Implicit bias is a human condition; a product of our brain’s natural functions, molded by society, and reinforced by our environment. For judges and lawyers, implicit bias can be particularly detrimental because it affects behavior and decision-making.
Judges rarely question their own objectivity, but they should. There is always the possibility that implicit bias will intrude on judicial decision-making, and affect the outcome. Also, judges have ethical obligations to be impartial and perform the duties of their office without bias. Inherent in their ethical obligations is the obligation to be aware of and act on their own negative biases and bias that exists within the legal system. Public trust in the courts depends, in part, on the public perceiving judges as free from prejudices or partiality.
Implicit bias is just as dangerous for attorneys, who need to be mindful of bias, prejudice, discrimination, and harassment. For instance, in criminal proceedings, implicit bias may reveal itself in every phase of prosecutorial discretion, from charging decisions to bail contests to trial strategy. In civil cases, implicit bias may discourage a lawyer from taking a suit brought by a member of a minority group, perceiving him or her as less trustworthy or honorable. In law firms, implicit bias may affect the hiring process, or advancement of women and lawyers of color.
The existence of implicit bias was observed in a study of 60 law firm partners who were asked to evaluate a law student memo. Researchers gave each partner the exact same copy of the memo, but half the memos contained names usually associated with those who are Black while the other half contained names usually associated with those who are white. The partners rated white students’ memos higher than the Black students’ memos, suggesting bias against Black hires.
Being alert to the potential for implicit bias can inhibit it. But before we can inhibit it, we must face it. Our decisions as legal professionals will not be free of stereotypes and bias, unless we accept the notion that we all harbor implicit biases of one kind or another. Then we can compensate for them. Psychologists have detected “an illusion of objectivity” that prevents people from confronting their biases. Most of us do not see ourselves as biased, and we assume that when we make decisions they are based on what we know, see, and understand. Not entirely true. For one thing, implicit bias may be at work.
To better understand your own struggle with implicit bias, take the Implicit Association Test (IAT), a free, anonymous, and easy-to-use computer program at https://implicit.harvard.edu/implicit/takeatest.html. Numerous IATs are available via the Project Implicit website, including those on race, religion, gender, sexuality, and disability.
The IAT divulges biases by asking participants to match names, faces, or categories to suggestive adjectives. As a co-creator of the IAT has pointed out, “At its heart, the test is telling us something about ourselves that is not palatable. While that leads us to reject this message, it also keeps us coming back to it, and once you know that, it opens up a whole new universe of decisions that can be made quite differently.”
Seminars and conferences tailored toward teaching people how to identify and guard against implicit bias can be effective at enhancing awareness and understanding of implicit bias, as long as they are not exclusively relied on and what is learned is put into practice.
Recognition also includes challenging ourselves to pay attention to the words we use. We should use inclusive language (e.g., “humankind,” “we,” “he and she”) and avoid words, expressions, or terms that might be considered offensive or that reinforce inappropriate or demeaning assumptions or attitudes (e.g., “man-made,” “illegal alien,” “dear”). Spoken and written communication should be neutral and non-sexist, non-ethnophobic, non-homophobic, and non-discriminatory, particularly in formal settings such as in court, at the office, or when meeting with clients.
Many of us avoid talking about controversial issues like racism, sexism, and ableism due to fear, either of saying something offensive or displaying ignorance. Or because it makes us feel awkward, self-conscious, or embarrassed. Like trying to break a bad habit, we cannot subdue implicit bias unless we are willing to open ourselves to other voices and viewpoints, and, possibly, criticism.
But giving in to fear will produce nothing positive. Unless and until each of us is willing to feel some discomfort, to counter our knee-jerk defensiveness, and to reflect on our past conduct, implicit bias will continue its claim on how we behave and comprehend the world.
Racial matters comprise a subject so sensitive that most of us would prefer not to even think or talk about it. Some people physically react to race-related discussions, particularly between those who are white and Black. There are those who justify their silence by believing we live in a post-racial America, but the turmoil of 2016 should have dispelled that notion. Indeed, the general inability of individuals who are white and Black to engage in conversations related to bias and prejudice signals that America has a way to go before declaring we live in a tolerant multicultural society.
Instead of avoiding controversial topics, legal professionals should participate in direct, candid discussions in a welcoming, supportive environment. Open and respectful dialogue can produce a lasting learning experience. Listening to people who differ from us enhances the understanding and knowledge necessary to gain some control over our biases. Too often, we isolate ourselves from “them,” when what we should be doing is moving out of our comfort zones and talking about the challenges that diversity and marginalization pose.
Dialogue can be private as well. Consider finding an ally or mentor—someone with whom you can safely discuss these sensitive issues.
Positive emotions break down barriers. Experts recommend that maintaining an open posture, making eye contact, and speaking fluidly can diminish the intensity of implicit bias. Even smiling helps. By inducing test subjects to smile while looking at unfamiliar Black and white faces, and then comparing IAT results from before and after the facial-recognition exercise, researchers discovered that IAT scores after the exercise showed a marked decrease in implicit bias.
While an occasional smile will not reverse unconscious bias, it can serve as a source of encouragement. Implicit bias research unravels “the intimate connections between our feelings and expectations and our perceptions…. Smiles and positive perceptions may not make every prejudiced instance or impulse disappear, but every individual step forward is a step closer to where we want to be.”
Implicit bias occurs because we automatically sort people who share similar characteristics into groups. Viewing people as unique individuals, rather than as members of a particular group, decreases implicit bias.
A study asked white test participants to distinguish black faces based on individual characteristics.Participants were divided into two groups. The first group distinguished Black faces from other Black faces, while the second group distinguished Black faces from white faces. White participants who had to individualize Black faces from other Black faces had less implicit bias after the test. Therefore, implicit bias can lose some of its command when we focus on a person as an individual rather than a member of a group.
Also, embracing commonalities that transcend categories shrinks subconscious stereotypes. Embracing our shared humanity enables empathy and empathy draws us towards others, allowing us to connect with all different kinds of people and better understand their lives and perspectives.
Colorblindness assumes that skin color is a “meaningless characteristic, and that everyone should be seen as the same, regardless of color.” At first blush, colorblindness appears desirable. Multiple studies, however, have established that a color-blind mindset actually results in less friendly interactions by white individuals with those who are Black.
The idea of color-blindness cannot solve our social problems. Colorblindness facilitates bias because it blinds us to disparities—while we may disagree over the cause of mass incarceration of people of color, a sizeable number of Americans refuse to admit the role played by a person’s skin color or economic status. The same is true of disparities in education and employment opportunities.
Race remains an “extraordinarily salient and meaningful social category.” Children are “wired” to notice racial differences as early as six months old. To pretend we can blind ourselves to racial differences allows unspoken biases to thrive.
Instead of color-blindness, we need to embrace color-awareness. We should be asking ourselves not whether we see race, but how we see it. The subject of race should prompt honest discussion about the challenges faced by people of color in their encounters in the color categorized world, and how to go about solving those challenges.
Negative stereotypes reinforce implicit bias. But implicit biases are malleable, and can be reduced by adapting counter-stereotypes, which replace negative stereotypes with positive ones. In a study of positive stereotyping, students began with a gender IAT to measure their implicit biases. Half of the students were asked to imagine a strong, capable woman and keep that image in mind. The rest were asked to envision a Caribbean vacation.
The participants then took a second IAT. The students who envisioned a strong woman showed less implicit bias against women on their second IAT compared to their first test. This research suggests that a positive stereotype (e.g., women as decisive leaders) upends stereotypes. Studies on positive racial stereotyping produced similar results.
Negative associations also can be reversed by formal or informal contacts and interactions between in-group an out-group members and by members of out-groups being seen in power and leadership positions. Also, seeking mentors and advisors of a different race, gender, sexual orientation, etc., than yourself has the potential to build respect for members of those groups.
Positive stereotypes do not require face-to-face contact; images, videos, and imagination have been found to reinforce positive attitudes. We should also commit ourselves to a diverse profession and encourage the entry of minority judges, partners, associates, and employees. Familiarity, exposure, and contact deter implicit bias by demystifying and humanizing how we view and relate to others.
A heavy-duty debiasing tool is to visualize yourself as the member of an out-group. Or, ask yourself whether you would feel differently about someone if that person was a member of a non-stigmatized social group. For example, male attorneys are likely to consider a female attorney who shouts at a witness as overly aggressive, while viewing a male attorney who does the same thing as a passionate advocate. Gender, of course, shouldn’t be the determinative factor.
Breaking preconceived expectations forces us to adopt different perspectives. Students with strong opinions on the death penalty were asked to examine the opposite perspective. Alternative thinking enabled students to become less committed to their opinions and more willing to weigh the other side; conversely, students who did not practice alternative thinking became more hardened in their beliefs.
Additionally, implicit bias thrives in spur-of-the-moment, intuitive decision-making and when we are distracted or under stress. The best antidote to these tendencies is to think in a deliberative fashion. Deliberative thinking requires pausing, hesitating, and taking a step back to think things over, like looking-before-leaping. It infuses time into decision-making, allowing time to take control of our automatic perceptions and judgments.
The process of writing involves deliberative thinking. We analyze and assess and parse and reflect, all of which are central to deliberative thinking.
Go back to the opening paragraph. You probably envisioned two white male police officers chasing a young Black male. In a last-ditch effort to avoid the consequences of his actions, you watched as the young Black male hurled a package of drugs out the window. Or, perhaps, you saw a different picture. Maybe you saw two Black female police officers chasing an Asian female.
Regardless of what you envisioned, the images that popped into your head were the result of implicit bias, reinforced by repeated social interactions, which caused your brain to fill in details the story never gave you. While we cannot survive daily life without an active unconscious mind, we also cannot have an inclusive and equitable society unless we recognize the significance and consequences of implicit bias. It causes us to discriminate without knowing it. It affects our perceptions and behavior toward others. It influences our reactions, choices, decision-making, and understanding of the world.
As human beings, as Americans, as judges and lawyers, we must not let implicit bias go unchecked. Only if we are willing to acknowledge and confront implicit bias can we loosen its obsessive hold on us. Nothing less will do.
Reprinted with permission of the Illinois Bar Journal,Vol. 105 #7, July, 2017. Copyright by the Illinois State Bar Association.
ISBA Free CLE, Implicit Bias in the Criminal Justice System (recorded Jan. 13, 2017), http://onlinecle.isba.org/store/seminar/seminar.php?seminar=92367.
Vincent F. Cornelius, Understanding Implicit Bias, 104 Ill. B.J. 10 (Aug. 2016), https://www.isba.org/ibj/2016/08/understandingimplicitbias.
Justice Michael B. Hyman, Implicit Bias in the Courts, 102 Ill. B.J. 40 (Jan. 2014), https://www.isba.org/ibj/2014/01/implicitbiasinthecourts.
