elimination of bias lauren orrmanuel villegasstaff attorneylos angeles county cssd

Elimination of Bias

Lauren Orr Manuel

Villegas

Staff Attorney Staff Attorney

Los Angeles County CSSD Los Angeles County CSSD

ELIMINATION OF BIAS

AGENDA FOR TODAY

• Characteristics of Bias

• Bias in the legal profession

• Bias in the IV-D Program

• Recognize and control Bias

ELIMINATION OF BIAS

Types of Bias

• Gender • Race• Sexual Orientation• Age• Disability• Culture• Social Status• Religion• Economic Status

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Characteristics of Bias

• Bias - a tendency to believe that some people, ideas, etc., are better than others that usually results in treating some people unfairly.

Merriam-Webster

• Bias - Prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair.

Oxford English Dictionary

ELIMINATION OF BIAS

Why is this MCLE?

• CA Rule of Professional Conduct 2-400

– (B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in:

(1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or(2) accepting or terminating representation of anyclient.

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“A man cannot be prejudiced against another without being biased against him; but he may be biased without prejudiced.”

Black’s Law Dictionary

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Scientists estimate that we are exposed to as many as 11 million pieces of information at any one time, but our brains can only deal with about 40.

• How do we deal with so much information and make daily decisions?

• We do it by developing a perceptual lens that filters out certain things and lets others in, depending on certain perceptions, interpretations and biases that we have

adapted throughout our life.

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• According to social cognition research, a fundamental process of the human brain causes humans to categorize and prefer people based on group identity.

• This all takes place within a fraction of a second before we recognize that it is happening.

• This is known as our unconscious bias.

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• We make decisions every day regarding what is appropriate or not, what is safe or not, and so on.

• The psychologist Joseph LeDoux suggests that this is an unconscious “danger detector” that determines whether something or someone is safe before we can even begin to consciously make a determination.

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Explicit v. Implicit Bias

• The word bias has a negative connotation, however there are different types of bias.

• Traditionally, it was assumed that patterns of discriminatory behavior in organizations are conscious.

• People who know better do the right thing.• Those who don’t cause bias.• As a result, a “good person/bad person” paradigm of

diversity is developed.

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EXPLICIT BIAS

• Explicit biases are the result of intentional, conscious, and controllable thoughts and beliefs.

• Explicit biases usually are directed toward a group of people based on what is being perceived.

• An example of an explicit bias would be that all African Americans are good athletes.

ELIMINATION OF BIAS


IMPLICIT (UNCONSCIOUS) BIAS

• Also known as implicit social cognition, implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner

• These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control

ELIMINATION OF BIAS


IMPLICIT AND UNCONSCIOUS BIAS

• Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.

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IMPLICIT BIAS

• Implicit biases are pervasive. Everyone possesses them, even people with avowed commitments to impartiality such as judges.

• Implicit and explicit biases are related but distinct mental constructs. They are not mutually exclusive and may even reinforce each other.

• The implicit associations we hold do not necessarily align with our declared beliefs or even reflect stances we would explicitly endorse.

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• Recently, psychologists have begun to look at what role implicit associations play in our beliefs and behavior.

• They have developed a tool called the Implicit Association Test (IAT).

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MALE FEMALE

……………… John ……………….……………... Bob ……………….

……………… Amy ……………….……………… Holly ……………….……………… Janice ……………….……………… Tom ……………….……………… Mike ……………….……………… Lisa ……………….

Assign each name to the category to which it belongs. Do it as quickly as you can. Don’t worry if you make any mistakes

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MaleFemale

or orCareer

Family…………… Lisa …………………………… Matt ………………

…………… Laundry …………………………… Entrepreneur ………………

…………… John ……………….

…………… Merchant ……………… …………… Holly

………………. …………… Kitchen ……………….

…………… Corporation …………………………… Parents ………………

This is an actual IAT. Take the test the same way as before

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MaleFemale

oror

FamilyCareer

…………… Lisa………………

…………… Matt………………

…………… Laundry ………………

…………… Entrepreneur ………………

…………… John ……………….

…………… Merchant………………

…………… Holly ……………….

…………… Kitchen ……………….

…………… Corporation ……………… …………… Parents

………………

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Was this a lot harder? Most of us have a much stronger mental association between maleness and career oriented concepts than we do between femaleness and ideas related to career.

The IAT is administered by computer that measures your responses down to the millisecond and those measurements are used to assign the score.

www.implicit.harvard.edu

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European American African American Or

Or Bad Good

__________ Hurt ___________

___________ Evil ____________

___________ Glorious ____________

___________ Wonderful ____________

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European American African American Or

Or Good Bad

__________ Hurt ___________

___________ Evil ____________

___________ Glorious ____________

___________ Wonderful ____________

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• 80 % of those who have ever taken the test end up having pro-white associations.

• It took them longer to complete answers when they were required to put good words in the “Black” category than when they were required to link bad things with black people.

• Of the fifty thousand African Americans who have taken the Race IAT so far, about 50% have stronger associations with whites than with blacks.

• Does this mean that 80% of the test takers are racists?

• Does this mean that 50% of African American test takers hate themselves?

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• We generally tend to hold implicit biases that favor our own ingroup, though research has shown that we can still hold implicit biases against our ingroup.

• Implicit biases are malleable. Our brains are incredibly complex, and the implicit associations that we have formed can be gradually unlearned through a variety of debiasing techniques.

• Interestingly, people who were given information about civil rights leaders (MLK and Rosa Parks for example) prior to taking the Race IAT scored African Americans more favorably than previously.

• This is true regardless of the test taker’ race.

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• Numerous studies have demonstrated that certain traditionally disadvantaged groups are treated differently, to their detriment. Some of these studies utilized IAT data whereas others were done before the IAT was developed.

• The studies show the very real impact of bias in people’s actions and inactions. No doubt many (if not most) of the people treating others differently are unaware of doing so. This is implicit bias playing itself out in everyday life.

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In a study involving tipping cab drivers, the following findings were made:

• White cab drivers were tipped 61% more than black drivers and 64% more than other non-white drivers in the sample

• Black passengers tipped white drivers 48% more than black drivers• White passengers tipped white drivers 49% more than black drivers• Latino passengers tipped white drivers 146% more than black drivers• Black drivers were 88% more likely to be stiffed than white drivers and

white passengers were nearly twice as likely to stiff black drivers than white drivers

• Passengers of all races tended to round up for white drivers and round down for black drivers

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• A study of restaurant tipping showed that customers of both races discriminated against black service providers by tipping them less than white service providers.

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• In a study examining gender bias, identical scripts were rated, some with the name of a female playwright and others with the name of a male playwright. The twist in these results was that it was the female reviewers that revealed a bias.

• The female reviewers rated the script with the female name significantly lower than the script with the male name whereas male reviewers rated them the same.

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• White undergraduates were videotaped while being interviewed separately by white and black experimenters. The subjects also completed a race attitude IAT. Those subjects whose race IAT scores indicated strong implicit preference for whites relative to blacks hesitated less and made fewer speech errors when speaking to the white experimenter than to the black experimenter.

• They also spoke to and smiled more a the white experimenter than the back experimenter.

• These subtle and spontaneous behaviors suggested a higher level of comfort interacting with the white

experimenter.

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Bias in the legal profession

• 1875: Wisconsin Chief Justice says that “thenatural law destines and qualifies the female sexfor the bearing and nurture of children of our raceand for the custody of the homes of the world…”

• 1879: First female admitted to practice before U.S.Supreme Court.

• 1944: U.S Supreme Court accepts first female lawclerk (for Justice Douglas).

• 1950: Harvard Law School accepts first femalestudent.

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• 1960: Only 3% of attorneys are female.

• 1972: Washington and Lee is the last law school to accept female students.

• 1981: Sandra Day O’Connor is first female Justice appointed to U.S. Supreme Court.

• 1993: Janet Reno becomes first female U.S. Attorney General.

• 1996: ABA elects first female president.

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Justice O’Connor

• Top graduate of Stanford Law School in1952.

• A large California firm offered her only asecretarial position.

• She refused the job and instead took a job as a deputy county attorney.

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Justice Ginsburg

• Top graduate of Columbia Law School in1959.

• She did not receive a job offer from any New York firm.

• Some law firms said she should apply to work as a secretary.

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Justice Kagan

• In 1986 graduated first in class at Harvard Law School.

• In 1988 became law clerk for Justice Marshall.

• In 2003 named first female Dean of Harvard Law School.

• In 2009 named first female Solicitor General.

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Bias in the Legal Profession

• 73% of female attorneys reported gender bias in legal workplaces as a major or moderate problem.

The four examples of gender bias women agreed occurred most:

• 70% - comments are made about the physical appearance or apparel of female attorneys when no such comments are made about male attorneys.

• 69% - asked if they are attorneys when male attorneys are not.

• 61% of women somewhat or strongly disagreed that they are able to advance as far as male attorneys in the legal profession.

• 67% of female respondents perceived there was less gender bias against women today than over the preceding five years.

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• Women comprise:

– 54% of population47% of law students31% of all lawyers

– 44% of law firm associates20.2% of law firm partners17% of equity law firm partners

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• 1865: First African-American admitted to practice before U.S. Supreme Court.

• 1868: Harvard Law School accepts first African-American student.

• 1948: U.S. Supreme Court accepts first African-American law clerk (for Justice Frankfurter).

• 1961: Reynaldo Guerra Garza is first Hispanic-American to beappointed to the Federal Bench (Southern District of Texas).

• 1967: Thurgood Marshall is first African-American Justice appointed to U.S. Supreme Court.

• 1971: Herbert Young Cho Choy is first Asian-American (Korean-American) to be appointed to the Federal Bench (9th Circuit).

• 1994: Billy Michael Burrage is first Native-American to be appointed to the Federal Bench (District of Oklahoma).

• 2002: ABA elects first African-American president.

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Justice Marshall

• He was the grandson of a slave.

• Denied admission to the University ofMaryland Law School because he wasAfrican-American.

• Attended Howard University Law Schooland graduated first in his class in 1933.

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Justice Sotomayor

• In 1978, Firm of Shaw, Pittman, Potts &Trowbridge suggested during recruitingdinner she was at Yale only as a result ofaffirmative action– Formal complaint filed with law school– Firm’s apology in December of 1978 made news in the Washington Post

• In 1991, first Hispanic federal judge in NewYork / first Hispanic female judge in U.S.

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• 77% of minority attorneys reported racial bias in legal workplaces as a major or moderate problem.

• 63% of minority attorneys believe current law school graduates of color do not have the same opportunity for employment in legal community as Caucasian graduates.

• 31% of minority attorneys reported they have beendenied employment, equal pay, benefits, promotion, or another employment related opportunity within the past five years.

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• Minorities comprise: 30% of population 20% of law students

• 10% of all lawyers 4% African-American 3.3% Hispanic 2.3% Asian .2% American Indian

• 20% of law firm associates 7% of law firm partners 14% of corporate attorneys 8% of Fortune 500 General Counsel

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One Catalyst study examined the experiences of women of color at law firms, comparing their experiences to people of color’s experiences and white women’s experiences. The findings included:

Women of color were more likely than any other group to experience exclusion from other employees, racial and gender

stereotyping.

Women of color were most likely to consider leaving the firm.

Women of color cited dissatisfaction with current level of work relative to work experience, and with access to high-profile client assignments.

Women of color perceived a lack of commitment from senior leadership

towards promotion of diverse candidates.

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Women in Corporations

Fortune 500 General Counsel

Women 21.0%

Men 79.0%

Caucasian African American Hispanic Asian American/ Pacific Islander Middle Eastern

81.9% 10.5% 5.7% 1.9% 0%

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Fortune 501-1000 General Counsel

Women 16.8%

Men 83.2%

Caucasian African American Hispanic Asian American/ Pacific Islander Middle Eastern 91.7% 7.1% 1.2% 0% 0%

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Percent of Clerkships Obtained By:

All Clerkships Federal Clerkships

State Clerkships

Local Clerkships

Men 49.0% 54.3% 45.2% 45.7%

Women 51.0% 45.6% 54.8% 54.3%

Judicial Clerks

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Women in the Judiciary Representation of United States Federal Court Women Judges

Type of Court Total # of Seats Women % of Women

United States Supreme Court

9 3 33.3%

Circuit Court of Appeals

169 active 56 33.1%

Federal Court Judges in the U.S.

1,874 451 24.1%

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Type of Court Total # of Seats Women % of Women

State Final Appellate Jurisdiction Courts

361 116 32%

State Intermediate Appellate Jurisdiction Courts

977 316 32%

State General Jurisdiction Courts

11,049 2,768 25%

State Limited & Special Jurisdiction Courts

5,072 1,596 31%

All State Court Judges in the U.S.

17,489 4,711 27%

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Total Representation of Women - Federal & State Judgeships

Men 73.9%

Women 27.1%

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Weekly Salary Men vs. Women Lawyers

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Bias in the IV-D Program

• The previous study has significant implications for Title-IV case workers and attorneys.

• If a case worker is less comfortable with an individual of a different race and background, and therefore less able to establish rapport, the ability of the case worker to provide satisfactory customer service may be compromised.

• If an attorney is less comfortable interviewing a case participant because of their race and background can that compromise the attorney’s ability to fairly evaluate the case and present the case in court?

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• Attorneys and case workers have to struggle all the time to avoid biases. It is difficult not to impose our biases (explicit and implicit) on how we conduct an interview and work up a case.

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Bias in the IV-D Program• A parent comes to court for a downward modification and says he

hasn’t been able to find a job in ten years. Then you interview the other parent who tells you that “he was always a bum” and told her “he would never pay her a penny in child support.” The obligor is on GR and not disabled.

• Does the race of the obligor (relative to your race) affect how you prepare this case for hearing? (Do you argue for a job search order or agree to set support at $0?) How much information do you try to gather from the obligor? How much time do you spend on this case?

• Does the obligor’s gender (relative to your gender) affect how you prepare this case for hearing? What if the obligor was a women? (Do you argue for a job search order or agree to set support at $0?) How much time do you spend on this case?

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Bias in the IV-D program

• A custodial parent (female) is interviewed and starts crying because she doesn’t have enough money to support the children. You then interview the father and he starts crying when he is told how much he must pay for child support because he can’t afford it.

• Do you treat them both the same? Will the race of either parent have an affect on how much sympathy you have for the parent? Will you double check your guideline calculation if the obligor was Black, Latino or White?

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• You handle a case where one father has six cases with six women and another case where the father has six children with one woman.

• Before you interview anyone or check CSE, have you made a presumption about the race of the parties?

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• You have a obligor who has filed a modification because he is a minimum wage earner and can’t afford his bills. He then tells you that his new girlfriend is pregnant.

or

• You have a female obligor who can’t pay support because she is aided with other children in her home.

• Does your gender make a difference? A brief survey of staff in our office reveals that men are more sympathetic to female obligors while women lawyers are not.

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• You receive a request for upward modification review from a female obligee. Her current child support order is $2000.00 for one child. The obligee does not work. The obligor recently obtained a promotion and makes 10% more income.

• You’re a female case worker and a single parent.

• How much of a priority is this modification request? Would it make a difference if you are a male case worker?

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• A case worker plays Christian religious music in her cubicle all day long. A Muslim co-worker in placed in the next cubicle. The Muslim co-worker complains.

• Is it bias to treat him or her in a special manner due to their religious preferences?

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• A case worker is in a wheel chair and, during an interview, she is asked if she needs special accommodations due to her condition. The case worker is offended by the question.

• Is the interviewer biased or being considerate?

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• A case worker is assigned to the call center or the reception area and has a very heavy accent, to the extent that it is difficult to understand them.

• Is it biased to transfer them into position where there is less contact with the public?

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Recognize and Control Bias

Constant exposure to negative stereotypes or negative information about certain ethnic groups has a subconscious effect on persons exposed to this information.

• Only until 2013 did the U.S. Census stop listing “Negro” as an option.

• In 11/14 the Army officially ended the practice that allowed service personnel to be addressed as “Negro.”)

• Using analytic word count software, Emory University evaluated hundreds of crime reports in major newspapers from 2000-2012 in order to measure the presence of the term “Black.” The software also measured the presence of over 300 negative emotion words (e.g. violent, hatred and enemy).

• The use of the term “Black” was positively associated with a negative emotional tone in the article.

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• Constant exposure to negative stereotypes or negative information about certain ethnic groups has a subconscious effect on persons exposed to this information.

• Lack of diversity creates a void in positive information about non-white ethnic groups.

• People may still express a belief in racial equality but their subconscious associations do not match up with their expressed views.

• Exposure to different ethnic groups tends to negate the negative associations with those groups.

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Defining Diversity

“In its broadest context, diversity is defined as recognizing,appreciating, valuing, and utilizing the unique talents andcontributions of all individuals regardless of age, careerexperience, color, communication style, culture, disability,educational level or background, employee status, ethnicity,family status, function, gender, language, managementstyle, marital status, national origin, organizational level,parental status, physical appearance, race, regional origin,religion, sexual orientation, thinking style, speed oflearning and comprehension, etc.”

Society for Human Resource Management

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Why Promote Diversity?• Good for business

– Diverse attorneys bring valuable attributes to their organizations

• Bring in talent– What makes a successful attorney is not immediately discernable from a

resume, transcript or twenty-minute interview

• Maintain talent– Creating a diverse environment can help prevent turnover / reduce

recruiting expenses

• Reduce legal risk– Failing in diversity can mean more workplace lawsuits

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Los Angeles County CSSD

The statistics for the attorney staff is below:

Non-white – 52.2%Female – 74.4%

Department wide

Non-white – 85.6%Female – 81.6%

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Final Thoughts

• Recognize that it is impossible to escape having biases.

• Confront and be aware of your biases and predispositions.

• Practice identifying your biases.

• Acquire information regarding the individual rather than identifying them with a group.

• Test your assumptions by asking questions.

• Give people who are different from you the same benefit of the doubt that you would give to someone in your own ingroup.

• Communicate with sensitivity to differences and use both receptive and expressive skills.

CONTACT

Lauren Orr

[email protected]

Manuel Villegas

[email protected]

mailto:[email protected]

mailto:[email protected]

elimination of bias lauren orrmanuel villegasstaff attorneylos angeles county cssd

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