Implicit Biases: A Hypothetical

Building on the last post that decried ineffectiveness of the perpetrator model of racial discrimination, this post will buttress the claim that well-meaning individuals can act in ways that hinder the goals of equal opportunity and that they often do so without the knowledge that their actions are caused by racial stereotypes. Linda Krieger asserts that “the entire normative structure of anti-discrimination law–is based on an assumption that decision-makers possess ‘transparency of mind,’ or that they can accurately identify why they are about to make, or have already made, a particular decision.” Using a hypothetical, I will show that this structure is a clumsy tool for assessing the discrimination liability of companies.

To explain, I will refer to a hypothetical decision-maker, Jeff. Jeff is a white male raised in the United States. He does not hold any racist or sexist beliefs on which he would consciously act. Let us further assume that Jeff is the manager of assembly line operations at an automobile assembly plant that employs at least one practice that has an adverse impact on women or minorities. Part of Jeff’s job is to promote line workers to the position of line supervisor in the different divisions of the plant. The line supervisor position requires knowledge of the responsibilities of the various assembly line workers in the division, attention to detail, the ability to encourage workers to produce a high-quality product, and the willingness to hold underproducing workers to account for failure to perform. Jeff evaluates the employees who are up for the promotion with an exam that tests their knowledge of the plant and a personality exam that seeks to quantify the test-taker’s leadership skills. Employees who achieve a certain benchmark score on both tests have interviews with Jeff who then makes the final decision. Although women and men both tend to score very well on both tests, men receive the promotion twice as often as women with similar scores. Additionally, although seventy percent of the women who have been interviewed are Asian-American, there has never been an Asian-American woman in the position of line supervisor. The women complain that Jeff thinks they are timid and not assertive enough to apply the appropriate pressure to underperforming workers. Jeff does not believe that he is consciously overlooking female or Asian-American candidates. Instead, he explains that the specific Asian-American females who have come up for the promotions simply haven’t got “the right stuff”.

The Asian-American women don’t have a discrimination claim under the perpetrator model. There isn’t any evidence that Jeff is intentionally dismissing the Asian-American candidates. The plant that employs them will counter with the fact that Jeff is a fair-minded decision-maker with years of experience. The company does not have another reliable method of choosing the most qualified candidates from among the pool of high-scoring applicants. Jeff’s interviews are able to draw out information that can’t be elicited in a battery of tests and his decisions have stood the company in good stead for years. As such, the practice of allowing Jeff to conduct interviews as the final phase in the promotional process is related to legitimate employment goals and legal.

The preceding hypothetical presents two important points which are often outcomes of these situations: one, the auto assembly plant has acted to protect its interests, its reputation and its supervisor, Jeff, who is acting in good-faith. Two, the burden of a practice with discriminatory results lies on the innocent plaintiffs, the Asian-American women.

Jeff may be implicitly associating the Asian-American women he interviews with weakness or submissive personality traits without being consciously aware of the association. Although he doesn’t know it is there, it influences his decision-making and acts as a barrier to the career advancement of Asian-American women in the plant. Researchers at Yale University and the University of Washington have developed a series of implicit association tests. The tests originated as tools to assist the researchers in delving into “the unconscious roots of thinking and feeling”. On their website, individuals may take an implicit association test to learn more about their own unconscious preferences and beliefs. One of the tests gauges the implicit associations and preferences the test-taker has for White Americans and African-Americans.
The entire test is a grouping exercise and must be done quickly so that the subject acts on her first impulse. Test takers are presented with computer generated faces that are stereotypically White- or Black-American which the test-taker must group under the White-American or Black-American heading. The faces are not ambiguous and clearly belong in one category or the other. Next, the subject must catalog words under “good” or “bad”. The words are also unambiguous, such as “wonderful” or “horrible.” The next phase requires test-takers to sort “White-American” and “good” on one side of the screen and “Black-American” and “bad” on the other side of the screen. The same faces and words will pop up on the screen and the subject must group them as quickly as possible. The final phase switches the categories with “Black-American” and “good” on one side and “White-American” and “bad” on the other. The final two phases occur in random order and do not materially affect the final score. The test interprets the subject’s response speed in the final phases. A subject has “automatic preference for Black” if she responds faster in the phase of linking African-American faces with pleasant words and “automatic preference for White” if she responds faster to linking white faces and pleasant words. The preferences vary from strong or moderate, to little or no preference.

The implicit association tests do not seek to smoke out prejudiced people who approve of discrimination. Instead, they attempt to dig into the private attitudes that individuals are unwilling to express and the private attitudes that may be hidden from conscious thought and feeling. The researchers have found that people with an automatic preference for White are able to avoid discriminatory behavior by making conscious efforts to check the preference. By revealing the preferences and racial associations that may lie beneath the surface, the implicit association race test has interesting implications for antidiscrimination law. Jeff could be just the sort of person who, without harboring any conscious negative feelings toward African-Americans, would score a strong automatic preference for Whites on this test. Though he may not be aware of it, his difficulty in being able to associate good things with African-Americans and the ease with which he associates positive attributes to White-Americans may be having deleterious effects on the diverse workforce he oversees.

Combating unconscious discrimination requires fewer recriminations and more tough conversations, less self-defense and more self-reflection. We can make progress in race relations, but progress will require a radical re-thinking of our basic assumptions about racism. Just as the Civil Rights Movement swept away entrenched ideas about racial superiority and inferiority, completion of the Movement demands that we remain open to new ways of confronting racism. This time, the battle lines may not be drawn in black and white. In the second wave of the Movement, we all live in shades of gray.

Implicit Biases: An argument for a new view

What follows is a slightly modified excerpt from my article, “Using Mediation to Remedy Civil Rights Violations When the Defendant Is Not an Intentional Perpetrator: The Problems of Unconscious Disparate Treatment and Unjustified Disparate Impacts” (24 Hamline J. Pub. L. & Pol'y 225 (2003).

The first important strides made against racial discrimination confronted the overt, intentional bigotry of zealots. In the struggle against racism, these zealots were the first to be stripped of their legitimacy. Overt acts of racism fell victim to public disapproval and legal illegitimacy. Openly racist actors were the easy-to-identify, easy-to-vilify perpetrators of discrimination. These actors and the policies they implemented became the public face of the racist establishment and their conversion or removal from power became the goal of partisans of equality. This paradigm created the perpetrator perspective of how racism manifests itself in social life. The so-called “perpetrator perspective” characterizes

“racial discrimination not as conditions but as actions, or series of actions, inflicted on the victim by the perpetrator…. Its principal task has been to select from the maze of human behaviors those particular practices that violate the principle [of nondiscrimination], outlaw the identified practices, and neutralize their specific effects.” (Alan David Freeman “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine”62 MINN. L. REV. 1049 reprinted in Critical Race Theory.)

As Freeman has pointed out, because the antidiscrimination ethic is mired in the perpetrator view of discrimination, it can do little to advance the creation of a discrimination-free society or equal opportunity. The perpetrator model of discrimination obliterates the subtle difference between conscious and unconscious discrimination. The difference is crucial for debunking the notion that all discriminators act intentionally. The perpetrator model of discrimination is an outmoded, inaccurate measure of modern discrimination. As such, our dependence upon it worsens race relations and sets our course in the elimination of discrimination in retrograde.

The perpetrator perspective has several faults. Two of those shortcomings are particularly significant. First, because the perpetrator model views discrimination as an aberration rather than an integral part of American life, the model is unconnected to history. The perpetrator model presumes that we have now arrived in a place where race is of no consequence. This alienates those minorities whose lived experience is that race is still a significant issue in their everyday lives. The model presumes that a “good” society was created the moment discrimination became a judicially cognizable wrong. By ignoring persistent conditions which reflect historical and contemporary discrimination against women and minorities, the model obscures and thus legitimates those conditions. If discrimination no longer exists, then conditions which are the product of centuries of both subtle and overt discrimination such as residential segregation, poor schools, and lagging economic development, may easily be recharacterized as the result of the personal failings of the victims.

The second failing of the perpetrator view is that the model gives birth to the ugly stigma of being a discriminator which anyone accused of racism will understandably want to avoid. The perpetrator model labels anyone who engages in discrimination as a sinner who should be frowned upon by the enlightened masses. However, the norms of racialized living are not so purged from American culture that anyone living in this country can escape having racially discriminatory ideas permeate their psyche. Linda Krieger’s breakthrough work on the ways in which cognitive dissonance affects modern discrimination sheds special light on this contention (Linda Krieger, “The Content of Our Categories: A Cognitive Bias Approach To Discrimination and Equal Employment Opportunity” 47 STNLR 1161). She presents strong evidence from social psychologists that stereotyping along the lines of salient characteristics is an inherent and essential part of being human. Because American society has viewed race as a particularly salient characteristic over the course of its history, today racial stereotyping is, while not socially desirable, cognitively inevitable. Though unconscious stereotyping is a natural process of negotiating a world with a multitude of stimuli for the mind to process, it has dire consequences for race relations generally and for equal employment opportunities particularly.

Maintaining our allegiance to the perpetrator model of discrimination prevents us from eliminating barriers to equal opportunity because of an over-reliance on the belief that racist outcomes are linked to consciously racist actors. Relying on methods to eliminate the contemporary and historical vestiges of discrimination that require the identification of a conscious wrong-doer will continue to miss the mark, and fall short of equal opportunity.

Implicit Biases and Unintentional Discrimination

The Washington Post featured an article on the Virginia senatorial debate between Senator George Allen (R) and his challenger, Democrat James Webb. As you are aware, Allen has been dogged during the race by his ties to the Council of Concerned Citizens (the successor organization to the anti-integration, white supremacist White Citizens Councils) and by the incident in which he called an American of Indian descent a racial slur (accidentally, of course). It has also surfaced that James Webb has made unsavory (read: misogynistic) comments about women in years past. Sigh. Poor Virginia. Poor America.

The Post article discusses the psychology of implicit biases and the futility of labeling people as discriminators. The author instead calls on politicians and others in power to recognize that they, like most people, hold unconscious biases based on group membership. To overcome these biases, those who hold them must recognize their existence and then resolve to behave in a way that consciously counteracts the effects of the bias.

Psychological flibberdigist, you may say. However, I support taking implicit biases seriously. I published an article when I was in law school that discussed what an embrace of implicit biases, or unintentional discrimination, would mean for employment law. Because I generally support the movement to recognize implicit biases as common, but combatable if they are recognized, I will include bits of my very long paper here over the next few days to encourage people to think about beating discrimination in a new way.

As a side note, the CCC is white supremacist group. Belonging or aligning oneself with such a group is not evidence of an unconscious bias, it is evidence of a conscious one.

"I Love America" Moment

Yesterday I had an “I love America” moment that I had to share.

Wednesday afternoon as I was waiting for the MARTA train in Atlanta, a Chinese woman (she was speaking Chinese into her cell phone, I am not just grouping all Asian-looking people into the Chinese category) paused in her conversation and thrust her phone to my ear repeating, “Excuse me. Excuse me.”

Immediately, I had a crazy New Yorker moment. Why is this stranger thrusting her phone at me? I am not getting involved in whatever crazy scam this is. I am not giving her my Social Security number. I am not-

“She needs directions. She wants you to talk to the person on the phone.”

“Huh?” I turned around to face a black couple sitting a few feet from me.

“She needs directions. Take the phone,” urged the woman.

To be honest, I was still very New-York-I-don’t-want-to-get-involved-with-strangers put out, but I couldn’t appear ungracious or inhospitable in front of my new neighbors so I took the phone.

The voice on the other end told me in halting English where the woman needed to go. I had not been in Atlanta a full week and had no idea what or where this place was. I turned to the helpful couple, “Dodoville? Doraville?”

“Doraville. She’s trying to get to Doraville,” the woman replied. Then she started to give me elaborate instructions for arriving there.

I made a face.

An older Hispanic man sitting in between me and the couple started to gesture then grumbled and grunted words that resulted in him volunteering to lead the woman to Doraville because he was headed there as well. He took the phone from me and I almost started laughing thinking about the broken English battle that was about to ensue, but then I smiled. There I was in the heart of the Old South (now the heart of the New South) among all those different people from different places who barely spoke a common language, but they were coming together to help each other out. I was witnessing a little slice of America at its best. I love it here.