Credit: Wikipedia Commons

Over the weekend, I was doing a lot of driving.  Having a kid at camp near the New Hampshire border to pick him up will do that.

So, it was time for me to catch up on some podcasts I had downloaded but hadn’t yet listened to.

I had already finished S-Town (worthy of a listen) but one of the others that I had been meaning to catch up on was Malcolm Gladwell’s “Revisionist History”.

In these episodes, he revisits an item from history that is often overlooked.

The first two episodes I picked were the most recent ones (State v. Johnson, and Mr. Holloway Didn’t Like That) and were based, in part, on interviews with legendary attorney Vernon Jordan and concerned legal cases from the Civil Rights Era.  Start there.

But the other one I listened too was from earlier in the season, called “Miss Buchanan’s Period of Adjustment”.

It too is riveting.

It tackles the landmark case of Brown v. Board of Education (the legendary school desegregation case) but from the perspective of the teachers who worked at the “colored-only” schools and who were subsequently laid off — allegedly for “performance” related reasons.

Even as a history major in college, I don’t remember hearing about this — how thousands upon thousands of black teachers lost their jobs when the schools that they taught at were closed. Different reasons were given — sometimes it was deemed to be too “difficult” for white students to be taught by black teachers.

But the effect was the same — a generation of teachers were lost to history.

That could be the end of a discrimination story, but Gladwell notes that the impact of this decision isn’t just that these teachers lost their jobs.

But rather, black students lost the opportunity to be taught by black teachers. And empirical research has shown that for black students, having a black teacher can be pivotal in reducing drop-out rates and ensuring students’ success.

The impact of these decisions still resonates today.

Gladwell highlights a study from just last year that looked for explanations about the under-representation of students of color in gifted programs.  Their conclusion?

Even after conditioning on test scores and other factors, Black students indeed are referred to gifted programs, particularly in reading, at significantly lower rates when taught by non-Black teachers, a concerning result given the relatively low incidence of assignment to own-race teachers among Black students.

For schools that employ teachers (including many of our clients), the podcast is a good reminder that the employment decisions that are made have a big impact beyond just the teachers themselves. Students lives and their successes and failures depend, in part, on the teachers that they have in life.

For other employers, listening to this podcast is a reminder that our laws governing the workplace are not all that old. Our current laws are a reflection on what occurred in the recent past. Indeed, the major federal law — Title VII — wasn’t passed until 1964 — nearly a decade removed from the Brown decision.

We’ve made a lot of progress, thankfully, since then. But ensuring fairness and eliminating race discrimination are still items that should remain high up in a company’s “must-do” list.

If you’re looking for something different to listen to, give the podcast a listen.  Gladwell may have his own agenda, but it’s thoughtful and entertaining.  And it’s a good reminder that compliance with employment laws is about more than just doing the right thing.

gavelSo yesterday, I said that while the topic of implicit bias was important to understand, I indicated that it was far from settled in the legal context.

One recent case demonstrates why.

The plaintiffs in an age discrimination case in Pittsburgh attempted to introduce testimony from Dr. Anthony G. Greenwald, who has developed the “Implicit Association Test” or IAT.  The plaintiffs wanted Dr. Greenwald to be able to testify about processes that function outside of conscious awareness.

The judge, however, rejected the testimony in part because Dr. Greenwald did not visit the employer or speak with any current or former empoyees or subject any of those individuals (manager or employees) to his “self-invented IAT”.  Therefore, the court found that there was insufficient facts and data to base his opinion in this case.

The case, Karlo v. Pittsburgh Glass Works, is an important one because it shows that just because someone’s research may be credible, it’s the application of that research to a particular situation that can (and perhaps should) be called into question.

However, the court in Karlo was not persuaded that the research is credible either:

The Court also finds that Dr. Greenwald’s methodology is unreliable, to the extent that the IAT informed his analysis and provided a basis for his opinion that most people experience implicit bias. Although taken more than fourteen million times, Dr. Greenwald cannot establish that his publicly available test was taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW. Dr. Greenwald also fails to show that the data is not skewed by those who self-select to participate, without any controls in place to, for example, exclude multiple retakes or account for any external factors on the test-taker. Perhaps to compensate for these shortcomings, Dr. Greenwald explains that his test is widely-used by “[m]any social cognition experts as a method in their own research” and that “[t]here exists near unanimous agreement among social psychologists as to the validity of the IAT as a method for implicit measurement of attitudes and stereotypes.” Be that as it may, the IAT still says nothing about those who work(ed) at PGW.

And it’s that last sentence that is critical. It is all fine to conclude that implicit bias may exist in society, but the court was cautious about applying it to the employer in this case.

But lest employees think that it can fix this testimony for use in other discrimination cases, the court said it had serious concerns about that too. (I’ve removed the cites for easier reading).

One final point bears mentioning: the Court doubts that Dr. Greenwald’s testimony regarding implicit bias is even relevant in deciding ADEA disparate impact or disparate treatment claims, which are analytically distinct from each other.  Where, as here, a plaintiff asserts a disparate treatment claim, he or she must “prove that intentional discrimination occurred at th[e] particular [employer], not just that gender stereotyping or intentional discrimination is prevalent in the world.” Moreover, disparate treatment claims require proof of a discriminatory motive, which seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.  Accordingly, the Court finds that Dr. Greenwald’s opinion does not meet the requirements of Rule 702, and therefore, it will bar his testimony at the trial of this action.

So what does the future hold for implicit bias in legal cases? That remains to be seen. The American Bar Association is putting on a presentation about implicit bias next week if you’d like more information.

For now, employers should continue to be aware of this issue and not dismiss it out of hand simply because the courts have yet to adopt it fully.  Something tells me we are still figuring out where implicit bias fits in the legal analysis of discrimination claims.

norwood1After the longest break away from this blog in 8 years (some purposeful, some not — and albeit not very long), it’s time to break from the summer doldrums and start thinking again.

Last week, I had the opportunity to introduce a former law professor of mine — Professor Kimberly Norwood — at my firm’s In Community Event.  Professor Norwood (you never feel comfortable calling a former professor by their first name) spoke eloquently on the way bias — and specifically implicit bias — can play a role in the legal system.

She was outstanding and if you ever get a chance to hear her (and YouTube provides several examples like this one and this one), I would recommend it.

Skillful readers may recall a post a year ago that she wrote here on this blog in the aftermath of the events in Ferguson.   But she is also compelling in her discussions about implicit bias.  In her speech and in an article she wrote last year, she notes that studies show that we ALL have implicit biases.  As she said,

Because there is a clear link between automatic stereotypes and behavior, it is important to untangle automatic associations that can do harm. Part of what social psychologists are doing now is helping us expose our biases
so that we can separate the good from the bad and make more informed and correct decisions.
What does this mean in the workplace? Well, suppose an overweight job candidate comes into your office for a job interview.  Is your implicit bias giving you bad vibes despite the superior credentials and great interview? Studies like this one show a bias in various aspects against overweight.  So, perhaps being aware of this, what then?
Professor Norwood doesn’t suggest any easy answers. And really, how could she? It’s tough to battle against and even when you don’t want those biases to prevail, you may be fighting against the biases of others too.
Now, this is not to suggest that the conclusions regarding implicit biases are settled; there are important legal questions to be decided on this too which I’ll cover in a future post tomorrow.  Whether courts accept this theory and whether it’s scientifically proven remains to be seen.
But that doesn’t mean we should ignore the topic.  Overall, the topic of implicit bias is an important one to keep discussing. These biases don’t make us bad people. But they do require us to continually challenge ourselves too.