Recognizing and Responding to Implicit Bias. Jollee Patterson P.K. Runkles-Pearson

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1 Recognizing and Responding to Implicit Bias Jollee Patterson P.K. Runkles-Pearson

2 What Is Implicit Bias? Unconscious stereotypes, associations, feelings, or attitudes about other people or groups May be contrary to expressly stated beliefs Unintentionally impacts perceptions or decisions about others

3 A young man walks through chestdeep water after looting a grocery store. Two residents wade through chestdeep water after finding bread and soda.

4 How Does Implicit Bias Affect the Workplace?

5 How Does Implicit Bias Affect the Workplace? Implicit bias based on race: associate lawyer s research memo

6 How Does Implicit Bias Affect the Workplace? Implicit bias based on accent: candidate s voice mail message

7 How Does Implicit Bias Affect the Workplace? Implicit bias based on gender Maternal wall Double standards/double bind

8 Can You Test For Implicit Bias? The Implicit Association Test (IAT) Race, disability, skin tone, religion, weight, sexual orientation Not a diagnosis!

9 Legal Implications of Implicit Bias

10 What Are the Legal Implications of Implicit Bias? What do the recent cases tell us? Evidence of implicit bias has been used in proving either disparate treatment or disparate impact discrimination Fact testimony versus expert testimony or both

11 Legal Implications for Employers Thomas v. Eastman Kodak Co. (1st Cir. 1999) Stereotypes and unconscious cognitive bias can be cause of illegal discrimination Incidents and situations Unprofessional behavior

12 Legal Implications for Employers White v. BNSF Railway Co., (9th Cir. 2018) Kephart v. Newell Fuel Service, Inc. (M.D. Pa. 2018) McKinney v. Office of the Sheriff of Whitley County (7th Cir. 2017) Andrews v. Freemantlemedia N.A., Inc. (S.D.N.Y. 2014)

13 Legal Implications for Employers Jones v. Nat'l Council of Young Men's Christian Ass'ns (N.D. Ill. 2014) Samaha v. Wash. State Dep t of Transp. (E.D. Wash. 2012) Kimble v. Wis. Dep t of Workforce Dev. (E.D. Wis. 2010) Prue v. Univ. of Wash. (W.D. Wash. 2009)

14 Legal Implications for Employers More analytical approach Role of experts in implicit bias cases Martin v. F.E. Moran, Inc. (N.D. Ill. 2017) compared to Karlo v. Pittsburgh Glass Works (3d Cir. 2017)

15 Attacks on Implicit Bias Jones v. Nat'l Council of Young Men's Christian Ass'ns (N.D. Ill. 2014) rejects IAT Wall Street Journal v. New York Times

16 Legal Implications for Employers: Takeaways Courts likely to permit evidence of implicit bias Recent cases in Washington and Ninth Circuit National expert from University of Washington Be ahead of the curve Anticipate and be prepared to respond

17 Best Practices to Address Concerns About Implicit Bias in the Workplace Hire an experienced trainer Build awareness and visibility about implicit bias Encourage problem-solving

18 Best Practices Continue your programs and initiatives to enhance workplace diversity and equity Examine current programs Encourage historically underrepresented employees to seek mentors and sponsors

19 Best Practices Consider reviewing the company's hiring, performance review, and promotion processes: Are your systems transparent? Do you use objective versus subjective criteria? Are historically underrepresented employees encouraged to self-advocate? Are historically underrepresented employees encouraged to participate in activities more weighted in advancement considerations?

20 Best Practices Consider conducting an internal audit Review hiring, assignment, and promotion procedures and/or decisions Retain outside counsel

21 Responding to Specific Implicit Bias Concerns Consider how to address questions or concerns raised by employees about implicit bias: Be prepared Develop a script and/or FAQs Do you address or investigate every question, issue, or concern on implicit bias?

22 Using the IAT What about the Implicit Association Test? Should employees be required to take the IAT? What are the legal implications? What if an employee tells you about negative results of an IAT taken by a manager?

23 When in doubt, pick up the phone

24 Thank You! Jollee Patterson P.K. Runkles-Pearson

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