A Publication of WTVP

The first step is to make this unconscious human tendency a conscious target for improvement.

Discrimination against a person simply because of that person’s race, color, religion, gender, national origin, age or disability is unfair and morally repugnant. For businesses, it is also stunningly counterproductive because it ignores the talents, experiences and work ethic of the individual. It is also, of course, illegal. In the employment context, the U.S. Equal Employment Opportunity Commission enforces federal laws prohibiting unfair treatment, harassment and retaliation based upon these and other factors. Overt discrimination, whether in the work environment or otherwise, is ugly and easily recognizable. We tend to view it simply: it is illegal and wrong, so we will not tolerate it.

Types of Unconscious Bias
Unconscious bias, or cognitive bias, is far less easily recognized. By its very nature, it is not intentional. Cognitive bias is considered by psychologists to be a systematic mental misstep in the form of a shortcut: a deviation from the norm in which one’s inferences about people irrationally ignore objective information.

There are a number of forms of cognitive bias. One form is confirmation bias. As the name suggests, confirmation bias is a tendency to look for and interpret information in a way that merely confirms one’s own preconceptions. In some contexts, succumbing to confirmation bias is no big deal. For example, one might reflexively not like a new product from a particular manufacturer because, years ago, one had an unfavorable experience with a different product from that manufacturer. When it comes to people, however, confirmation bias can lead one to unfairly judge someone based upon unfavorable stereotypes or impressions of other individuals’ conduct. This is particularly troubling given that confirmation biases can reinforce one’s implicit biases—attitudes and beliefs, developed inadvertently, which remain outside of one’s conscious control but affect one’s opinions and behaviors.

Another form of unconscious bias is affinity bias. Affinity bias is a tendency to gravitate toward people like oneself. In an employment context, this can have the effect of unintentionally favoring certain people and excluding others from job opportunities or professional development.

Case Studies of Bias in the Workplace
Increasing diversity in the workplace is a goal of many well-intentioned industries. Taking the legal profession as an example, much has been written about law firms’ efforts to increase female and minority representation among their ranks of attorneys. It behooves firms to succeed in this effort—not only because it is the right thing to do, but because there are strong business-related benefits associated with doing so.

A law practice that better represents the composition of the larger community should stand to gain business from that community. Nevertheless, studies show that, nationally, progress remains slow. In fact, even if hiring is increasing, legal organizations regularly experience disproportionately higher rates of attrition among members of groups already underrepresented in the profession, including females and racial and ethnic minorities. Conscious discrimination, as a recognized harm to business, cannot explain much of this phenomenon. Unconscious bias may be a significant part of the problem.

Multiple studies demonstrate that confirmation bias can affect how experienced professionals judge the quality of work produced by their subordinates. In one instance, a controlled study found that law firm partners rated an identical legal memorandum less favorably when they believed the author to be black rather than white. Other studies show that affinity bias unfairly leaves women and minorities out of important career-advancing opportunities, such as networking, training and social interactions. This may result from older, white male lawyers unintentionally gravitating toward younger “versions of themselves.” But without the opportunities such close relationships provide, women and minorities may not progress toward leadership positions at a rate expected by their numbers and skillsets. Even if the behavior is completely unintentional, this may hinder the efforts of a profession committed to diversifying itself.

Law firms are but one example of the myriad organizations affected by forms of cognitive bias. The university setting has resulted in a multitude of studies on the subject. For example, one study on gender discrimination found that both male and female university students were more likely to prepare undesirable teaching evaluations for female faculty members in comparison to their male counterparts. Another study found that psychology professors from both sexes were more likely to hire “Brian” than “Karen” for an assistant professor position.

A recent experiment rendered the same result: researchers sent identical applications for a lab manager position, with the only difference being that some applications bore a male name, while others bore a female name. Prospective employers, regardless of gender, viewed the male applicants as significantly more competent and hirable; they also offered male applicants higher starting salaries. In each of these examples, nothing suggests that students, employers or faculty members intended to favor men over women. That favoritism was likely unconscious, and potentially related to ingrained societal expectations of gender roles.

Efforts to Detect and Address Bias
Efforts to understand and address cognitive bias in the workplace must continue. The first step is awareness—making this unconscious human tendency a conscious target for improvement. Although some managers may genuinely not understand that cognitive bias affects their work-related practices, the simple decision to recognize its existence can lead to the behavioral changes needed to combat biased decision-making.

Opening channels of communication to obtain employee feedback is integral in detecting unintentional bias. Anonymous surveys of current and former employees may unearth disparities of treatment not previously understood. An anonymous complaint channel, available to all employees, may also reveal the existence of biases that harm workers and deprive the organization of a truly diversified workforce. Both of these mechanisms may allow for the development of training and procedures to help combat the problem.

On a personal level, managers should periodically reflect on whether, in retrospect, their actions reveal bias. Questions to consider include: Who am I spending most of my time mentoring and why? Have I provided every subordinate with the same opportunities? Do I have “go to” people for reasons of affinity rather than based upon skill?

Paired with genuinely good intentions, self-reflection on an organizational and personal level can help us temper our unconscious tendencies to more fairly treat others in the workplace and beyond. iBi

John Heil is a partner in Heyl Royster’s Peoria office, focusing his practice on commercial and civil rights litigation, insurance coverage disputes and the defense of catastrophic tort actions. Bide Akande is an associate in Heyl Royster’s Chicago office, concentrating his practice on commercial litigation, defense of Section 1983 and other civil rights cases, and workers’ compensation defense.