What Is Unconscious Bias?

As of May 2020, when George Floyd was killed, the CEOs of over 900 companies had joined the CEO Action for Diversity and Inclusion (ceoaction.com), pledging to advance diversity and inclusion in their companies. At the beginning of 2023, membership had more than tripled. One of the specific components of the pledge commitment is to provide education on unconscious bias for all employees.

In recent years, research has revealed how prone our unconscious minds are to making mistakes through stereotyped beliefs and attitudes. Our brains are basically bias-making machines but we are often surprised when presented with evidence of our implicit bias. The greater surprise is the extent to which people in underrepresented groups themselves make biased judgments and decisions based on stereotypes about their own groups. This happens because we are all exposed to many of the same cultural and media images which are embedded to varying degrees in the unconscious minds of everyone.

In 2012, 127 biology, chemistry, and physics professors from six major university laboratories participated in a study evaluating resumes of applicants for a lab manager position.[i] The researchers sent study participants identical resumes except for the name at the top of the page; half received Jennifer’s resume and the other half evaluated John’s resume. Even though the two fictitious candidates had the same qualifications, John’s resume was evaluated more favorably. Specifically, John received an overall rating of 4.0 (out of 7.0) for competence while Jennifer’s average rating was 3.3. Further, the scientists who reviewed John’s resume decided, on average, to pay him $30,328 compared to the average starting salary of $26,508 for Jennifer. Study participants also disproportionately volunteered to mentor John if he came to work in their laboratory. In large part, these differing assessments happened on an unconscious level; the researchers found that the female scientists were just as prone to this unconscious gender bias, giving more favorable ratings to the male candidate as often as the male scientists.[ii]

This study was followed by a much larger field study,[iii] published in 2014, that probed unconscious bias with respect to gender and race in academia. Researchers sent emails from fictitious students to more than 6,500 professors in 109 PhD granting disciplines at 259 universities across the United States. While the vast majority of university professors are white men, the study included a large over sample of female and racially/ethnically diverse professors (Latino, African American, Indian, and Chinese). The emails came from fictitious students with names that clearly signaled their gender and race (e.g., Juanita Martinez, Dong Lin, Mei Chen, Keisha Thomas, Terrell Jones, Steven Smith, Brad Anderson, Sonali Desai, Raj Singh). All the emails had the same message – the prospective student asked to meet briefly to discuss working with the professor in a graduate program. The study found that the white male students received far more responses – not just from white male professors but from the female and racially/ethnically diverse professors as well – in every academic discipline. For example, business school professors ignored the emails from female and racially/ethnically diverse students more than twice as frequently as those from the white male students. As with the 2012 study, there were no significant differences between male and female professors in their implicit bias against female and racially/ethnically diverse students.

While these studies focused on academia, there is every reason to believe we all would be similarly prone to these same unconscious biases. For instance, in the legal industry, studies conducted in law firms show a tendency to significantly advantage white male lawyers.

In 2014, Dr. Arin Reeves released results of a study she conducted to probe whether practicing attorneys make decisions based on confirmation bias.[iv] This type of unconscious bias causes people to pay more attention to information that confirms pre-existing beliefs and ignore information that contradicts their established belief systems. In other words, we see what we expect to see, and we don’t see what we don’t expect to see. Dr. Reeves’s study was designed to test whether attorneys unconsciously believe African Americans produce inferior written work while Caucasians are better writers. She enlisted the help of five attorneys to create a research memo on trade secrets that included 22 errors – 7 minor spelling/grammar errors, 6 substantive technical writing errors, 5 factual errors, and 4 analytical errors. The research memo was distributed to 60 partners in 22 different law firms who thought they were participating in a “writing analysis study” to help a young lawyer with his writing skills. The breakdown of the participating lawyers was as follows: 23 women, 37 men; 39 Caucasian, 21 racially/ethnically diverse.  All participants were told the memo was written by a (fictitious) third-year associate named Thomas Meyer who graduated from NYU Law School. Half of the participants were told Thomas Meyer was Caucasian and the other half were told Thomas Meyer was African American. The law firm partners participating in the study were asked to give the memo an overall rating from 1 (poorly written) to 5 (extremely well written). They were also asked to edit the memo for any mistakes. Ultimately, 53 evaluations were returned (24 evaluating African-American Thomas Meyer’s memo and 29 evaluating Caucasian Thomas Meyer’s memo).

The results indicated strong confirmation bias on the part of the evaluators. On average, the evaluators gave African American Thomas Meyer’s memo an overall rating of 3.2 out of 5.0, while the exact same memo garnered an average rating of 4.1 out of 5.0 for Caucasian Thomas Meyer. The evaluators found twice as many spelling/grammatical errors for African American Thomas Meyer (5.8 out of 7.0) compared to Caucasian Thomas Meyer (2.9 out of 7.0). They also found more technical and factual errors and made more critical comments with respect to African American Thomas Meyer’s memo.

Even more significantly, Dr. Reeves found that the female and racially/ethnically diverse partners who participated in the study were just as likely as white male participants to be more rigorous in examining African American Thomas Meyer’s memo (and finding more mistakes) while basically giving Caucasian Thomas Meyer a pass.[v]

It is probably not a stretch to assume that the attorneys who participated in this study were shocked by the results. That is the insidious nature of unconscious bias – people are completely unaware of implicit biases they may harbor and how it can influence their decisions.

Dr. Lauren Rivera, a professor at Northwestern University, conducted a study[vi] where she sent fictitious resumes to 316 offices of 147 top law firms in 14 cities from candidates seeking summer associate positions. All the fictitious candidates were in the top 1% of their class and on law review but attended second-tier law schools. Socioeconomic status was indicated by the activities listed in the awards and extra-curricular sections of the resumes. Law firms overwhelmingly preferred the higher-class male applicant. He received more than four times the number of callbacks of the other applicants. In interviews of law firm partners, Dr. Rivera found that some of this was actually intentional and happened as a result of culture matching – higher class male students were viewed as fitting in better with partners and clients.

Hiring for “culture fit,” however, can lead to group-think. It is the opposite of diversity and can lead to under-performance in decision-making. Instead, organizations should be hiring for “culture add,” by asking, “What perspectives and backgrounds are we missing on our team?”

Interrupting Unconscious Bias

Experts believe that our unconscious is responsible for as much as 80% to 90% of thought processes.[vii] Yet, our conscious mind is simply not capable of perceiving what our unconscious is thinking.[viii] You can be two persons at the same time: your conscious self that firmly believes you do not treat others differently because of their social identities, and your unconscious self that harbors stereotypes or biased attitudes which unknowingly infiltrate your decision-making.[ix]

Research scientists are learning more about how unconscious biases operate, including methods for uncovering and interrupting them.[x] While it is not clear yet whether implicit biases can be completely eliminated, there are techniques that have had some success in disrupting their impact. To re-script your unconscious thoughts and interrupt implicit biases, you have to “work” your “ABS”:  first, develop Awareness of those biases, and then make the Behavior and Structural changes required to disrupt them.

Awareness

Most of us are cognizant of our conscious biases – the stereotypical judgments and preferences we have for or against other groups. To reduce your conscious biases, you can ask yourself “Why”: “Why am I bothered by people in that group?” “Why do I persist in thinking all people in that group engage in that stereotyped behavior?” “Why am I giving more time and energy to relationships with people who are a lot like me?” Asking such questions is essential to actively challenging your biased beliefs in order to interrupt or mitigate them.

On the other hand, uncovering unconscious bias can prove more difficult. Education about unconscious bias is a critical first step. By realizing and accepting we all have bias, we are better equipped to watch for it in ourselves and help others see it as well. No wonder the thousands of companies and law firms that have joined the CEOAction pledge have committed to conducting unconscious bias training.

There are three ways to develop awareness of your own unconscious bias:

1. Take one or more of the free, anonymous implicit association tests online at www.projectimplicit.org. This series of tests, sponsored by Harvard University and taken by millions of people since the late 1990s, can help reveal areas where you unknowingly struggle with unconscious bias. There are over a dozen different tests, measuring unconscious bias with respect to, among other things, disability, race, age, gender, gender roles, mental health, weight, sexual orientation, and religion.The tests measure how quickly or slowly you associate positive or negative words with different concepts. Your unconscious, immediate assumptions reveal themselves in your faster responses as well as the delayed responses measured by the computer when you struggle to connect words and concepts that are not as readily associated. You might not like, or be in denial with respect to, some of the test results, but they can be useful in revealing often uncomfortable truths.

2. Keep track of your surprises[xi] – instances when something you expected turned out to be quite different.Your surprise opens a window into your unconscious. For example, when you pass a slow-moving car impeding the flow of traffic, do you expect to see an elderly driver behind the wheel? If it is a younger person behind the wheel, does that surprise you? Even if you don’t believe you are consciously biased against the elderly, could you harbor unconscious stereotypes or attitudes? If so, how could those attitudes influence decisions involving older colleagues, witnesses, jurors, vendors or clients?

3. Pay attention to discomfort. Any time you are uncomfortable, consider whether unconscious stereotypes and attitudes could be the cause. You may discover that you consciously disagree with that feeling of discomfort, and the latent bias causing it.

While awareness is necessary, it is not enough, by itself, to interrupt unconscious bias. Behavioral changes are also essential.

Behavior Changes

Like correcting a bad habit, you can retrain yourself to think in less biased and stereotyped ways. But motivation is key; research shows that people who seek to be fair and unbiased are more likely to be successful in breaking their biases.[xii]

Researchers have identified strategies people can use to change their behaviors to overcome bias. They include the following:

1. Retrain Your Brain:“The ‘holy grail’ of overcoming implicit bias is to change the underlying associations that form the basis of implicit bias.”[xiii] Thus, it is important to identify, and then modify, those associations. Here’s how:

1. The next time you notice yourself starting to jump to conclusions about a different group (like the slow driver on the highway), have a conversation with yourself about why you are jumping to conclusions and resolve to retrain your reflexive attitudes.
2. Oppose any stereotyped thinking. In experiments, people who think of a stereotype and say the word “NO” and then think of a counter-stereotype and say “YES” have more success in interrupting their unconscious bias with respect to that stereotype.[xiv] You can take this to the next level by saying to yourself, “That’s wrong!” when picturing the stereotype. Research shows that tactic is even more successful in breaking bias.[xv]
3. Regularly expose yourself to counter-stereotypical models and images. For example, if you automatically associate men with leaders, focus on successful female leaders to retrain your unconscious to make the connection between leaders and both women and men. Research has shown that simply viewing photos of women leaders reduces implicit gender bias.[xvi]
4. Remind yourself that you have unconscious bias and actively doubt your objectivity. Research shows that people who think they are unbiased are more biased.[xvii] There is a Skill Pill mobile app on managing unconscious bias that is available for enterprise usage (skillpill.com). If you engage with this app before hiring, evaluation, and promotion decisions, it could help you interrupt any unconscious biases. Diversity Lab is also developing an app to help member law firms interrupt unconscious bias in the talent development cycle that will send lawyers alerts before interviews and during recruiting, feedback and committee meetings.[xviii]
5. Engage in mindfulness activities (like meditation) on a regular basis, or at least before participating in an activity that might trigger stereotypes (e.g., interviewing a job candidate). Research shows that mindfulness helps break the link between past experiences and impulsive responses, which can reduce implicit bias.[xix]

2. Engage in Cross-Difference Relationships: Cultivate work relationships (or personal relationships outside of work) that involve people with different social identities.[xx] This takes you out of your comfort zone and allows your “unconscious” to become comfortable with persons who are different. Presumably, those new relationships will cause you to dismantle stereotypes and create new types of thinking – both conscious and unconscious. Along these lines, experts recommend leaders mentor junior colleagues who are different in one or more dimensions – across gender, race, age, religion, parental status, etc. – and ask them how they view things, which help leaders with blind spots as well.[xxi]

3. Mix It Up: Actively seek out cultural and social situations that are new or even challenging for you; where you are in the distinct minority, or where you are forced to see or do things differently. For example, go to a play put on by an acting troupe of people with disabilities or attend a cultural celebration that involves customs and cultures you have never been exposed to before. The more comfortable you become in these situations, the more easily your unconscious will unlearn biases.

4. Shift Perspectives: Walk in others’ shoes; look through their lenses to see how they view and experience the world. This will help you develop empathy and see persons as individuals instead of lumping them into a group and applying stereotypes.[xxii] The NFL is taking this tactic to the next level by using virtual reality in its unconscious bias training sessions where participants become a person of a different gender or race in the virtual reality space.[xxiii] However, don’t just guess about others’ experiences and views. Research shows you are more accurate and gain greater understanding if you engage in perspective-getting – by asking them about themselves.[xxiv]

5. Find Commonalities: It is also useful to look for and find commonalities with colleagues who have different social identities.[xxv] Do they have pets? Are their children attending the same school as yours? Do they also like to cook, golf, or volunteer in the community? You will be surprised to discover how many things you have in common. This realization alone will shift you out of an “us” vs. “them” mode. Another method is to focus on how you and your colleagues are all on one team.

6. Reduce Stress, Fatigue and Time-Crunches: We are all more prone to revert to unconscious bias when we are stressed, fatigued, or under severe constraints.[xxvi] Thus, it is critical to try to relax and slow down decision-making so that your conscious mind drives your behaviors with respect to all persons or groups.[xxvii]

One of the most important behavior changes leaders can engage in is to audit their decisions and behaviors for affinity bias. Most of the hidden barriers fueling higher attrition for those in underrepresented groups are caused by affinity bias. Thus, leaders need to ask themselves the following questions:

• Who are my usual favorites in the office?
• With whom am I more inclined to spend discretionary time, go to lunch, and participate in activities outside of work?
• Do I hold back on assigning work to people from underrepresented groups until other others vouch for their capabilities?
• When I go on client pitches, do I take the same people?
• Who makes me feel uncomfortable more often?
• To whom do I give second chances and the benefit of the doubt?
• Would I give the benefit of the doubt to someone who is not in my affinity group?
• Am I sponsoring or mentoring more people who are like me?
• Am I sharing information equitably or just with those who are more like me?

If necessary, try tracking the time you spend with others, as well as the opportunities you offer them. Then evaluate whether you are investing more in your usual favorites, and thus excluding others. Highly skilled, inclusive leaders make concerted efforts to ensure that hidden barriers are not thriving on their watch.

While awareness and behavioral changes help individuals interrupt their unconscious bias, organizations have structural elements that perpetuate systemic bias that must be addressed as well. Embedding bias interrupters into widely used systems and processes of an organization is more effective in mitigating unconscious bias than relying on individuals to actively identify and interrupt their own biases.

Structural Changes

While interrupting unconscious bias on an individual basis is an imperative, experts have found that structural bias interrupters are even more impactful. In general, since bias thrives in unstructured, subjective practices, leaders should put structured, objective practices and procedures in place. Accountability measures are also essential. Just knowing you could be called on to justify your decisions with respect to others can decrease the influence of implicit bias.[xxviii]

Leaders, in conjunction with the DEI committee, can examine all systems, structures, procedures, and policies for hidden structural inequities and then design action plans to change them to be more inclusive of everyone. For more ideas on bias interrupters and inclusion nudges, read Kathleen’s articles (posted on this website) or her book – Going “All In” on Diversity and Inclusion: The Law Firm Leader’s Playbook.

 What Going “All In” on Diversity, Equity and Inclusion Means

A recent call with a law firm managing partner reminded me how law firm leaders need much more education about diversity, equity, and inclusion to skill up in these critical 21^st Century topics. He was very passionate in stating his commitment to DEI but when he started talking about all of the things the firm had done to advance DEI, he unwittingly revealed his ignorance on these topics. By listing off the traditional programs his firm was engaged in, and nothing more, he signaled to me that he and his firm were stuck in the 20^th Century and had no clue what inclusion is or how to operationalize it. I felt for him, knowing that if I was a corporate GC who was fluent in these topics, I would have the word “dinosaur” rattling around in my head during the call. Inside counsel do not generally hire dinosaurs or their firms.

If you or your firm are way behind the curve on DEI, education is the place to start.

Going “all in” on diversity and inclusion means much more than just recruiting diverse lawyers to “get the numbers up.” It means creating an inclusive work environment that makes diversity sustainable. Law firms have primarily focused on diversity – getting people from underrepresented groups in the door. The harder part is making the transformational change required to make the firm inclusive and equitable, so that attorneys in underrepresented groups are retained at the same rates as white male attorneys.

Unfortunately, becoming skilled in effective DEI practices takes more than attending an occasional “lunch & learn” session or conference seminar. To be successful, law firm leaders need to engage in extended learning opportunities.

The worst situation for a leader is to attend a one-off workshop at the firm on unconscious bias and have everyone wondering what the firm is doing to combat unconscious bias and looking to leaders for answers when there are none because leaders are learning the material for the first time themselves.

A more strategic approach to DEI is have the leadership group engage in 1-2 days of education to get up to speed on the topics and immediately engage in planning for change – cultural, behavioral, and structural. Then, when training is later rolled out to the rest of the firm, leaders can announce the actions they have taken to foster greater inclusion and de-bias the firm.

Read more about Kathleen’s All-In DEI Leadership Workshop Series or Contact Kathleen for more information about her highly-engaging and thought-provoking educational workshops on unconscious bias and other DEI-related topics.

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[i] Corrine A. Moss-Racusin, et al., “Science Faculty’s Subtle Gender Biases Favor Male Students,” Proceedings of the National Academy of Sciences 109, no. 41, 2012, pp. 16474-16479.

[ii] Id. at 16477.

[iii] Katherine Milkman, Modupe Akinola, & Dolly Chugh, “Temporal Distance and Discrimination: An Audit Study in Academia,” Psychological Science 23, no. 7, 2012, pp. 710-717,https://bit.ly/2QDHrjz; Katherine Milkman, Modupe Akinola & Dolly Chugh, “What Happens Before? A Field Experiment Exploring How Pay and Representation Differentially Shape Bias on the Pathway into Organizations,” Journal of Applied Psychology, Vol.100, no. 6, pp. 1678-1712, https://bit.ly/2iyYnGE.

[iv] Arin Reeves, “Written in Black and White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills,” Nextions Yellow Paper Series, April 4, 2014, https://bit.ly/2uy2Lh3.

[v] Id. at 5.

[vi] Lauren Rivera & Andras Tilcsak, “Research: How Subtle Class Cues Can Backfire on Your Resume,” Harvard Business Review, December 21, 2016,https://bit.ly/2igoWVL.

[vii]MahzarinBanaji& Anthony Greenwald, Blindspot: Hidden Biases of Good People, New York, NY: Delacorte Press, 2013.

[viii] Id. at 55.

[ix] Id. at 20.

[x] One of the best resources for information on bias is an annual review by the Kirwan Institute for the Study of Race and Ethnicity (The Ohio State University):  Cheryl Staats, et. al, “State of the Science: Implicit Bias Review 2017,” Kirwan Institute, 2017, https://bit.ly/2AHKfa1; Cheryl Staats, “State of the Science: Implicit Bias Review 2014,” Kirwan Institute, 2014, http://bit.ly/Sabh1y; Cheryl Staats& Charles Patton, “State of the Science: Implicit Bias Review 2013,” Kirwan Institute, 2013, http://bit.ly/1KynIcC.

[xi] Arin Reeves, The Next IQ: The Next Level of Intelligence for 21^st Century Leaders, Chicago, IL: American Bar Association, 2012; see also Simma Lieberman & Kate Berardo, “Interview Bias: Overcoming the Silent Forces Working against You,” Experience, https://bit.ly/2H1FcXM.

[xii] Jeffrey Rachlinski, et al., “Does Unconscious Racial Bias Affect Trial Judges?” Notre Dame Law Review 84, no. 3,2009, pp. 1195-1246.

[xiii] Cheryl Staats& Charles Patton, “State of the Science: Implicit Bias Review 2013,” Kirwan Institute, 2013, http://bit.ly/1KynIcC.

[xiv] Kerry Kawakami, et al., “Just Say No (to Stereotyping): Effects of Training in the Negation of Stereotypic Associations on Stereotype Activation,” Journal of Personality and Social Psychology 78, no. 5, 2000, pp. 87 -888.

[xv] India Johnson, et al., “Just Say No! (and Mean It): Meaningful Negation as a Tool to Modify Automatic Racial Attitudes. Group Processes & Intergroup Relations,” Sage Journals, May 19, 2016, https://bit.ly/2TNR7Kl.

[xvi] See Christine Jolls& Cass R. Sunstein, “The Law of Implicit Bias,” California Law Review 94, 2006, pp. 969-996; see also Irene V. Blair & Alison P. Lenton, A. P. “Imaging Stereotypes Away: The Moderation of Implicit Stereotypes through Mental Imagery,” Journal of Personality and Social Psychology 8, no. 5, 2001, pp. 828-841.

[xvii] Eric L. Uhlmann& Geoffrey L. Cohen, “‘I Think It, Therefore It’s True’: Effects of Self-Perceived Objectivity on Hiring Discrimination,” Organizational Behavior and Human Decision Processes 104, 2007, pp. 207-223.

[xviii]Xiumei Dong, “Legal Industry ‘Hackathon’ Awards Ideas for Combating Bias, Promoting Diversity,” The Recorder, November 5, 2018, https://bit.ly/2FEKVSM.

[xix] Jill Suttie, “Can Mindfulness Help Reduce Racism?” Greater Good: The Science of a Meaningful Life, December 9, 2014, http://bit.ly/1zL2oLf; Nicole Torres, “Mindfulness Mitigates Biases You May Not Know You Have,” Harvard Business Review, December 24, 2014, https://bit.ly/1B2gTem.

[xx] Tiffany N. Brannon & Gregory M. Walton, “Enacting Cultural Interests: How Intergroup Contact Reduces Prejudice by Sparking Interest in an Out-Group’s Culture,” Journal of Personality and Social Psychology 79, no. 4, 2013, pp. 631-43; Kellogg Insight, “Stacking the Deck against Racism,” October 1, 2008, http://bit.ly/1bZUB6H; see also Thomas F. Pettigrew, “Generalized Intergroup Contact Effects on Prejudice,” Personality and Social Psychology Bulletin 23, no. 2, 1997, pp. 173-185; Thomas F. Pettigrew & Linda R. Tropp, “A Meta-Analytic Test of Intergroup Contact Theory,” Journal of Personality and Social Psychology 95, no. 5, 2006, pp. 751-783.

[xxi] Frank Dobbin & Alexandra Kalev, “Why Diversity Programs Fail and What Works Better,” Harvard Business Review, July-August 2016,https://bit.ly/28KAo2R.

[xxii] Adam D. Galinsky &Gordon B. Moskowitz, “Perspective-Taking: Decreasing Stereotype Expression, Stereotype Accessibility, and In-Group Favoritism,” Journal of Personality and Social Psychology 78, no. 4, 2000, pp. 708-724; Andrew R. Todd et al., “Perspective Taking Combats Automatic Expressions of Racial Bias,” Journal of Personality and Social Psychology 100, no. 6, 2011, pp. 1027 – 1042. See also Margaret J. Shih, Rebecca Stotzer, &Angélica S. Gutiérrez, “Perspective-Taking and Empathy: Generalizing the Reduction of Group Bias towards Asian Americans to General Out-groups,” Journal of Abnormal Psychology 4, no. 2, 2013, pp. 79-83 (empathy reduces implicit bias).

[xxiii] Marco della Cava, “Virtual reality tested by NFL as tool to confront racism, sexism,” USA Today, April 8, 2016, https://usat.ly/2Ml6p65.

[xxiv] Tal Eyal, Mary Steffel, & Nicholas Epley, “Research: Perspective-Taking Doesn’t Help You Understand What Others Want,” Harvard Business Review, October 9, 2018, https://bit.ly/2Oc4uFP.

[xxv] Samuel L. Gaertner, Reducing Intergroup Bias: The Common In-group Identity Model, Florence, KY: Psychology Press, 2000 (when we re-categorize others according to features or characteristics we share, we are more likely to see them as part of us and are less likely to discriminate against them as an out-group).

[xxvi] Irena Stepanikova, “Racial-Ethnic Biases, Time Pressure, and Medical Decisions,” Journal of Health and Social Behavior 53, no. 3, 2012, pp. 329-43.

[xxvii] Jerry Kang, “Communications Law: Bits of Bias,” in Justin D. Levinson and Robert J. Smith (editors), Implicit Racial Bias across the Law, Cambridge, MA: Cambridge University Press, 2012, pp. 132-145.

[xxviii] Tristin Green & Alexandra Kalev, “Discrimination-Reducing Measures at the Relational Level,” Hastings Law Journal 59, no. 6, 2008, pp. 1435-1461; Jerry Kang et al., “Implicit Bias in the Courtroom,” UCLA Law Review 59, no. 5, 2012, pp. 1063-1118.