Applying Cognitive Sciences to Understand and Manage Bias

Understanding and Eliminating Bias;

Applying Cognitive Sciences to Understand and Manage Bias

Santa Clarita Bar Association, June 22, 2016

by Myer J. Sankary, Esq.[i]

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1. Understanding bias — Defined

What is Bias?

In its simplest definition, bias is a personal disposition, mind-set, attitude, preference based on a pre-existing belief system either for or against another individual or group expressed in a way that may be viewed as unfair to the persons or group against whom bias is exhibited or to unfairly favour an individual or group resulting in a unfair advantage. Bias can come in many forms and is often considered to be synonymous withprejudiceorbigotry. Cognitive bias has been studied by social psychologists since the early 20th century and focuses on information processing, thinking and decision making systems of the brain.[i]

The human mind evolved to understand the world by creating categories.[ii] Survival depended on the ability to make the right choices (often immediately and automatically without deliberative thought) such as choosing a mate, choosing friends and others who could help you and your family, choosing food that was nutritious and satisfying and avoiding people, animals, and foods that posed a danger. To survive it was important to decide quickly whether a stranger was a potential threat or friend.

Over generations, preferences known as “in-group,” “out-group” or “my-side” biases became an automatic thought process. As modern society evolved, people were connected to many in-groups such as family, communities, regions, religious affiliations, schools, colleges, professions, sport teams, racial and ethnic groups, and political affiliations. A bias naturally favored the group you were part of and disfavored those persons and groups with whom you were not affiliated.

Some social psychologist believe that bias and prejudice arise from an early uncritical mindset .Once we have formed a mindset as a youth without thoughtful examination of our beliefs at a time when critical thinking and reasoning has not matured, we learn to behave mindlessly toward others in the out-group. Ellen Langer, the first woman tenured at Harvard in clinical and social psychology found that bias and prejudice arise from “premature cognitive commitments.” In her book Mindfulness (1989) she concluded that humans apply patterns acquired in the early childhood period without reflection to later events and encounters. These patterns become “mindless behavior” –as though on automatic pilot. As a result, we tend to make generalizations such as “All women are”…; “all blacks are…”; all Catholics/Baptists/Jews/Mormons/Moslems are…;” “all liberals are…”, all conservatives are…”

Most of us grew up and spent time with people like ourselves.[iii] However, when we confronted someone who was different, we dropped the assumption of commonality and looked for differences – we looked for negatives in people who were in the out-group. Early attempts to learn about others may have led to a falsified view of the world and we cling to those beliefs as we mature. Prejudice arises from judgments about others that was premature, not based on adequate knowledge about the other and often inaccurate. We then generalize from our experience from a few encounters with persons in the out-group, and then create a stereotype impression that everyone who is a member of that out-group has behavioral characteristics that we find offensive or objectionable.

In general, when bias is a matter that affects the personal life of an individual such as preferring a Mercedes over a Cadillac, little or no harm can arise from such a preference. However, when a person in power has the ability to impose penalties to deprive someone of his life or liberty, such as a judge or jury, or deny large groups of persons equal rights by their judgments, then it is essential that the person in authority make a decision based on the objective evidence without regard to one’s status, race, religion, gender, age, sexual preference, or other group identification. [iv] The more discretion a judge has in making a decision, such as in family law, the more room there is for bias to arise. There is a fundamental belief in this country based on the Constitution that everyone should be treated equally under the law and the law should provide equal protection regardless of what group you may belong to.[ii] [v]

2. Implicit Social Cognition – the science of implicit bias;

Since the 1990’s hundreds of studies by social psychologists have provided us with extensive insight into the nature of bias both explicit and implicit. It is estimated that less than 20% of the population today would overtly express explicit bias - such language is generally condemned as “politically incorrect” with consequences of losing one’s position.[vi] But studies have shown bias still exist in more subtle forms that are unknown to most people. Through new forms of testing, scientists have demonstrated that implicit or covert bias is pervasive and is often difficult to detect.

In the 1990’s, Anthony Greenwald, a psychology professor at the University of Washington, developed a new test that revealed implicit bias through the use of the implicit association test (IAT). He collaborated with Mahzarin Banaji, a professor of psychology, who was then at Yale, to expand the test to include ways of detecting biases in many different categories such as gender, sexual preference, age, disability, ethnicity, race, etc. Eventually, these tests were put on the internet and can be found at . Over 4.5 million people have taken the test and it has been validated by many social scientists.

Research contained on the website compared two types of bias shown below that still exist in American society:

EXPLICIT BIAS
•Intentional
•Expressed
•Fully aware
•Animus toward others
•Conscious
•Deliberative / •IMPLICIT BIAS
•Unaware
•Unconscious
•Not intentional
•Bias is denied
•Immediate judgment
•Intuitive
•Reactive

In a recent law review article, the authors state that implicit bias “..refers to the subconscious associations we make between a particular object and the meanings we attach to it…” “…implicit biases result in automatic associations between an individual’s race and corresponding stereotypes and attitudes… we now know that implicit bias predicts actual behavior.”[vii]

In Blindspot, the authors ask “Are Americans Racist?” They describe briefly the history before 1930, that lynching of Black Americans averaged between fifty and a hundred per year. They also point out that before the Civil Right Act of 1964, many states had laws permitting or requiring segregation of black from whites in public places such as schools, buses, hotels, bathrooms and restaurants and prohibited inter-racial marriages. The movie “42” relates the ordeal of Jackie Robinson as the first black professional baseball player in America. The Tuskegee Airman movie illustrates the treatment of Black airmen during WWII. Recent movies like “The Butler” and “12 Years a Slave” also have brought to conscious awareness the oppressive existence for blacks in America.

In 2012, Cambridge University Press published a comprehensive collection of articles by experts who have studied bias across the legal system and society in a book entitled, Implicit Racial Bias Across the Law, edited by Justin D. Levinson and Robert J. Smith. These articles demonstrate how bias exists in almost every area of law and society from a social science perspective, including property law, criminal law, torts, employment law, health law, education law, corporations law, tax law, intellectual property, environmental law, Federal Indian Law, and capital punishment. There are hundreds of cases in which innocent black defendants were convicted but were exonerated based on DNA evidence after spending as much as 30 years in prison.[viii]

Some of the important findings of the Implicit Association testing as reported on the website are:

1. “Implicit bias is largely automatic and is based on the characteristic in question (gender, skin color, age, sexual orientation). It operates so quickly, in the relevant tests, that people have no time to deliberate. It is for this reason that people are often surprised to find that they show implicit bias. Many people say in good faith that they are fully committed to an antidiscrimination principle with respect to the very trait against which they show a bias.”

2. The validity of the Implicit Association Test has been supported by numerous scientists. Over 4.5 million have taken the tests since 1998 with over 15,000 tests completed each week. The studies show that bias exists outside of conscious awareness or outside of conscious control.

3. Implicit biases are pervasive. They appear as statistically "large" effects that are often shown by majorities of samples of Americans. 75-80% of self-identified Whites and Asians show an implicit preference for racial White relative to Black.

4. People are often unaware of their implicit biases. Ordinary people, including the researchers who direct this project, are found to harbour negative associations in relation to various social groups (i.e., implicit biases) even while honestly (the researchers believe) reporting that they regard themselves as lacking these biases.

5. Implicit biases predict behavior from acts of friendliness and inclusion to hostility and exclusion – e.g., Zimmerman vs Trayvon Martin (stand and defend laws) to more serious acts such as the negative evaluation of work quality.

6. People differ in levels of implicit bias. Implicit biases vary from person to person - for example as a function of the person's group memberships, the dominance of a person's membership group in society, consciously held attitudes, and the level of bias existing in the immediate environment. This last observation makes clear that implicit attitudes are modified by experience.

7. Those with higher levels of implicit bias have been shown to display greater discrimination.

Query: Was Donald Sterling’s behaviour for which he was sanctioned by the NBA expressly biased or implicitly biased? He denies that he is racially biased.

Was Cliven Bundy’s comment expressly or implicitly biased that blacks were better off as slaves than today because they are dependent on the government welfare? He denies that he is racially biased.

3. The Effects of bias in the legal system.[ix]

1. Unfair application of law depending on bias of the jury or judge; Undermines trust and confidence of the public in the legal system

2. Denies due process and equal protection to racial minorities, the poor, the homeless.

3. Creates perception that system is not fair.

4. Results in denial of access to jobs and promotions

5. Results in conviction of the innocent

6. The guilty remain free and often commit more serious crimes.[x]

4. The Effects of bias in society

a.Dehumanization of the other — in extreme forms can lead to holocaust and genocide

b.Discrimination – denial of rights

c.Prevents equal opportunity

d.Prevents fair and equal treatment in determination of disputes

g. Creates distance in social groups

h. Adverse impact on relationships

5. Law and Disorder – Bias and CognitiveDissonance (Tavris & Aronson, Mistakes Were Made (but not by me)at pages 127-157.

a. Conviction of numerous innocent persons – how is it possible?

b. Exoneration of over 300 convicted persons, some of whom spent up to 30 years in prison, some on death row. See . 187 of those exonerated were black, 21 Latinos, 86 Caucasians.

c. The Central Park Five – Five black and Hispanic teenagers (14,15 and 16) gave coerced confessions, despite no physical evidence linking them to the crime. They were convicted and sent to prison from 10 to 12 years, until the real perpetrator confessed. Despite the perpetrator’s confession and DNA evidence linking him to the crime, original prosecutors and police investigators vigorously protested vacating the conviction of the 5 boys. They refused to believe the boys were innocent because they had confessed.

d. Reasons for wrongful convictions – mostly motivated by bias (preconceived judgment)

i. Police and prosecutors believe that innocent men are never convicted despite DNA proof of factual innocence. Cognitive dissonance makes it impossible to admit their mistakes and to recognize new evidence contrary to their firmly held belief. The Self-Justification phenomenon prevents them from acknowledging that they were responsible for convicting an innocent person.

ii. Improperly obtained false confessions.

iii. Prosecutor misconduct – withhold of exonerating evidence.

iv. Faulty eye-witness testimony

v. Bias of investigating officers – making snap decision of guilt or not – some police end up “testilying”

vi. Unvalidated or improper forensic science.

vii. Biased informants

e. Rationale for Court decisions-implicit gender bias? In June 2014, the United States Supreme Court ruled that corporations can deny contraceptive coverage in employer provided health insurance plans mandated by the Affordable Care Act, if the employer has religious beliefs against birth control. The religious beliefs of the closely-held corporate entities (as expressed through their officers and owners) trump the family planning rights of the women who are their employees based on the majority’s interpretation that the mandate violates the Religious Freedom Restoration Act, a federal statute. The dissent (joined in part by all female members of the Court) recognizes that women’s abilities to participate equally in society depend in part on their ability to control their reproductive lives,[xi] that access to affordable birth control is a cornerstone of that control, and that this decision significantly impinges on those rights. Women and men are differently situated in terms of the risks of unplanned pregnancies and equal opportunity may require differential access to birth control.

f. Rationale for enforcement of the laws-national origin and ethnicity bias? In the spring and summer of 2014, another immigration crisis manifested as scores of unaccompanied children, along with some families, entered the United States, undocumented, in an effort to flee crime, gangs and poverty in Honduras, Guatemala and El Salvador. Calls to send the children back may reflect a bias against immigrants from the Americas, whom many deem to be unworthy, without regard for their potential status as asylum seekers based on the conditions in their home countries.

g. When the laws and courts conflict-sexual orientation and identity bias? On a more positive note, courts have increasingly upheld the rights of lesbian, gay, bisexual and transgender persons, both before and after the United States decisions in Windsor[xii] and Perry,[xiii] overturning state statutes and ballot measures that restrict gay marriage. Public opinion about the propriety of gay marriage, as well as the perception of the rights of gays and lesbians in society, have changed dramatically in the past several decades, which is reflected in the state legislation and ballot measures that have approved gay marriage. Nevertheless, manifestations of bias against LGBT individuals occur explicitly, in organizations like the Boy Scouts, as well as implicitly in many workplaces. That said, in July, 2014, the president signed an executive order to prohibit discrimination based on sexual orientation and gender identity in federal contracting.[xiv]

6. How to manage bias in our lives and law practice

A. The 5 Competencies of Emotional and Social Intelligence – Daniel Goleman,

Self-awareness: The ability to accurately recognize one's emotions and thoughts and their influence on behavior. This includes accurately assessing one's strengths and limitations and possessing a well-grounded sense of confidence and optimism.

Self-management: The ability to regulate one's emotions, thoughts, and behaviors effectively in different situations. This includes managing stress, controlling impulses, motivating oneself, and setting and working toward achieving personal and academic goals.

Social awareness: The ability to take the perspective of and empathize with others from diverse backgrounds and cultures, to understand social and ethical norms for behavior, and to recognize family, school, and community resources and supports.

Relationship skills: The ability to establish and maintain healthy and rewarding relationships with diverse individuals and groups. This includes communicating clearly, listening actively, cooperating, resisting inappropriate social pressure, negotiating conflict constructively, and seeking and offering help when needed.

Responsible decision making: The ability to make constructive and respectful choices about personal behavior and social interactions based on consideration of ethical standards, safety concerns, social norms, the realistic evaluation of consequences of various actions, and the well-being of self and others.

B. Concrete Strategies for Managing Bias

1. Identify Settings for Bias

The first goal is to reduce the incidents of bias in your practice. This is where the self-awareness competency becomes important—so that we can acknowledge and assess the way our individual biases, preconceived notions and working generalizations impact our behavior in certain situations. Take a moment throughout the day to analyze your response to people and situations you encounter. Ask yourself whether your reaction has more to do with your own thought processes rather than with the actual behavior that you have experienced.