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Systemic Changes Needed to Tackle Implicit Bias

By PADMA NAGAPPAN  |  October 1, 2017

When a young female attorney at a law firm goes on maternity leave, upon her return she may be in line for a trial case assignment, where she’ll work with a supervising partner. As an associate aiming to make partner in a couple years, she will need to work hard to prove herself, but the partner leading the case may assume she needs time with her baby and decide not to burden her with the trial. Thus, she misses an opportunity for career growth and opportunity.

Patricia Gillette, JAMS mediator and arbitrator

“I love this example, because it’s really a bias born out of good intention.  This is a supportive partner who thinks he is doing the right thing for this new mother, but he makes his decision based on a stereotype of what young mothers want,” said Patricia Gillette, Esq., a mediator with JAMS who specializes in employment disputes. “The partner might think, “If I ask her, she will say yes out of obligation, not real desire to do this trial at this time,” so he does not even ask her, he makes the call for her.”

Gillette, who spent 40 years as an employment attorney, dealing with wrongful discharge, harassment, retaliation and other disputes before joining JAMS, cited this as a classic case of implicit bias, with someone trying to do the right thing, but not giving the woman a chance to make her own decisions.

Bias manifests itself in various ways – whether it’s refusing to give young Asian executive a project because he is “not tough enough,” or doing a performance review where the words used to describe women are less powerful than those used to describe men.

How is this addressed in the workplace? Implicit bias training is one way to begin to raise consciousness about this issue so people start to become aware of their biases and can affirmatively take steps avoid such biased decisions.

“Lawyers can also help organizations examine where bias stems from, and help weed it out,” Gillette said.  “Is there a systemic problem?  Is there an explanation for differences in compensation, promotions, and leadership opportunities that might reflect hidden biases against women and minorities?  These are the questions lawyers can ask.”

How We Got Here

Back in the day, men made deals on the golf course, in the men’s room, and in men’s clubs and companies were allowed to discriminate based on personal characteristics.  The Civil Rights Act of 1964 brought about big change in the United States, as the landmark civil rights law that prohibits discrimination based on race, color, religion, sex, or national origin.

“We have seen improvement in eliminating intentional discrimination between 1964 and now, but that doesn’t mean discrimination has been eliminated in the workplace.  It continued in some companies (and continues today). But even while intentional discrimination was being addressed, implicit bias continued to impact decision-making virtually unchecked,” Gillette explained. “The biased views of managers still existed, but weren’t being addressed legally, in part because they are harder to identify and corral. Even if someone suspects an employment decision is the result of implicit bias, the claim is difficult to prove. And that is one explanation for why there may be fewer minorities and women among top executives in corporate America, even 40 years after the passage of Title VII.”

How do you intervene and change such bias?

Address Systemic Flaws

Implicit bias training can be an effective tool.  But if it is implemented, it has to happen across the organization, not just with new hires that watch human resources videos about harassment or bias, but from top down all the way to the shop floor.  That, however should not be the stopping point.  Rather, companies should also examine their systems to see if there are biases that are interfering with the advancement of women and minorities.

“The issues could be with compensation, hiring, or promotions – so all the factors that can impact someone’s progression have to be examined, to figure out why it’s happening, and whether systemic changes are necessary,” Gillette said.

Using mediation to address implicit bias cases can be extremely useful to both sides.  These cases are time consuming and expensive for both sides.  The job of JAMS neutrals is to assist companies in evaluating the potential liability as well as the exposure to damages and adverse publicity.  “If you have an implicit bias problem in your company, it’s usually never just one person. So when claims are brought, companies need to think the impact this case could have on their entire workforce and work systems,” Gillette pointed out.

Mediators can also help plaintiffs understand how difficult it can be to prove these cases, making settling out of court a better option.  Gillette noted, “There are also non-monetary solutions that may resonate with some plaintiffs who want to see systemic changes.  Sometimes, these kinds of changes can be more effectively suggested by the mediator in the context of mediation.”

Louis Marlin, JAMS mediator and arbitrator

“Bringing these cases to early resolution is critical, because they’re expensive to litigate for both sides and extremely disruptive for the company due to massive document requests, expert witness issues, and depositions of managers and high level executives,” Gillette said.  “That is why resolving these cases through mediation can be a win for both sides.”

Louis M. Marlin, Esq., a JAMS mediator focused on wage and hour litigation, and employment discrimination litigation, concurs with her that implicit bias is a road block to resolving litigation.

Even mediators have to consciously avoid bias, and offer the same opportunity to each party present, be they women, minorities or recent immigrants who speak with an accent.

Marlin, who was a litigator for 43 years and focused on class action law suits, and multiparty litigation, said there’s no question about the impact of implicit bias on women and minorities.

“Take the example of two lawyers from each side at a joint meeting. If one side has a male and a female attorney, you may find that the other side addresses their questions and comments only to the male, even if the woman is the one lead on the case,” he said. “That’s an unconscious action that diminishes her role. It’s a problem mediators have to deal with too.”

Assumptions That Hurt

He has also seen implicit bias happen frequently with minorities when it comes to communications, which then impacts how a case is settled. There’s an assumption that Asian Americans are cheap and so they’ll take less money to settle, or that Jews will hold out for all the money they can get, whereas reality may actually be very different.

Recent immigrants who are not native speakers of English are looked down upon, and people assume this reflects their lack of intelligence, but an accent or inability to speak English does not actually reflect their capability.

“In mediation, I see this constantly, and I have to say to myself as a mediator, this person is a human being, immigrant or not, native English speaking or not, they deserve the same respect and time and attention as anyone else. That’s part of the challenge we all face,” Marlin explained.

Furthermore, “Anyone who says I have no prejudices, no biases, is lying. Unfortunately, we all have them, but fortunately we can all overcome them.”

He recalled how for class action suits, when he represented Hispanic clients who needed interpreters at depositions, opposing counsel would display a lack of respect and often speak louder, under the common assumption that speaking louder helped someone understand the language.

“There’s often a feeling that if someone needs an interpreter, they’re not entitled to the same consideration or compensation compared to native English speakers. An assumption that their case is worth less, because they don’t speak English, so the dollar amount drops,” Marlin said. “I also see this in mediation, a lack of respect for people who are different from who you see in the mirror.”

When he witnesses such behavior, he tries taking the attorney aside and delicately explain and get them to stop doing it. It’s a fine line to walk as a mediator, and he has to do it without losing neutrality. But he knows clearly that he won’t actually change how they think, he can only try to get them to put their bias aside long enough to resolve the case.

The most common cases of implicit bias involve women, both Gillette and Marlin said, followed closely by promotions for minorities.

Change on the Anvil

However, bias seems to be less common among the younger generation that is more willing to keep an open mind, and treat people the same whether they are minorities, or LGBTQ, and accept them for who they are, without bias.

“So I have hope that the next generation of lawyers, and managing partners at law firms will make changes, as my generation fades away,” Marlin said. “The law needs to be reflective of what our society looks like – it hasn’t been for centuries, but it needs to be now.”

He added, “The law has always been a white male dominated practice and that has to change. It is changing now, and it’s encouraging to me, as I see women, African Americans, Asian Americans and others coming to meetings from a position of power.”

He recalled how 20 years ago there were few women managing law firms, and how when his wife began practicing law in the 1980s, she would go to opposing counsel’s office to take a deposition, and the receptionist would assume she was a court reporter and tell her where to set up her recording machine.

“Fortunately, there’s been tremendous progress, aided by the women’s movement, as women began to demand equal rights, and fought and forced their way in, since it was not handed to them. For minorities, it was the Civil Rights movement. And for the LGBTQ community, we are in the very middle of their civil rights movement,” Marlin explained. “As our society becomes more pluralistic, the law will begin to lead the way more.”

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