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Dear Littler: I am General Counsel at a large, well-known company. We handle all Diversity & Inclusion initiatives for our company within our Legal Department, which I oversee. Our HR team is really pushing us to approve company-wide “implicit bias training.” I’m having a hard time endorsing the idea, and I can’t help but wonder: Am I the only GC who has concerns about this kind of training? What am I missing?
— Skeptical in Schenectady
Dear Skeptical in Schenectady,
Based on my experiences, I can tell you that – no – you are not the only GC who has expressed reservations about implementing implicit bias training. In reality, company members – from the C-suite to the stockroom – experience a wide range of responses towards the notion of implicit bias, as well as to the usefulness of training programs that purport to “root it out.”
On the other hand, your HR team is far from alone in promoting this type of training initiative. Many employers see great potential in these educational opportunities, as part of their broader diversity and inclusion (D&I) efforts. With a closer look at these concepts, we will explore your concerns as a lawyer, as well as what you may be “missing.”
Let’s start with a brief overview of “implicit bias,” which is also referred to as “unconscious bias.” Bias is a tendency or inclination that results in judgment without question. Implicit bias is a relatively automatic and unconsciously-held set of associations that people have about various topics and social groups, without even realizing that they learned them or continue to carry them in their “mental file cabinets.” These biases stem from our socialization, such as family and cultural conditioning that we received as children, along with our life experiences or “triggers.” Unconscious biases can touch on any subject matter and may be positive or negative.
Importantly, everyone holds some sort of implicit bias. Indeed, these attitudes appear to feed part of our basic biology. Our brains rely on these types of ingrained prejudgments to help quickly process the millions of pieces of input by which we are bombarded every day. Our brains scan, filter, judge, and categorize information at all times to help us navigate our worlds—and we don’t even know we are doing it.
While these biases may serve invaluable purposes in many scenarios, they can lead us astray in many other situations. Difficulties may arise in the work environment, for instance, when we allow our brains to operate on “cruise control,” relying on unseen biases that lead to inaccurate conclusions, which can in turn then lead to regrettable words and deeds. Numerous studies show discrepancies, in all fields, among the treatment of different groups of people—for no apparent, justifiable reason.1
In the workplace, implicit bias can lead to poor, unfair, irrational, and/or discriminatory decision-making in every step of the employment lifecycle: screening, hiring, training and mentoring opportunities, performance reviews, promotions, discipline, and terminations. Some recent studies have demonstrated, for example, that candidates with “white-sounding” names and content in their resumes are more likely to receive an interview.2 In another study, it was revealed that law firm partners more harshly graded a third-year associate’s legal memo when told that the hypothetical author was African American.3 Several studies have suggested that performance review processes may disadvantage female employees, in instances where biased supervisors may subject them to different standards than their male peers.4
Of course, such outcomes are deeply troubling from a social justice standpoint. Research consistently shows that diverse and inclusive workplaces achieve better financial outcomes.5 Accordingly, and beyond such laudable principles of fairness and equity, the issue of implicit bias is a business – and branding – issue: unchecked biases can be detrimental to organizations whose leaders may be unwittingly perpetuating discriminatory practices. In addition, organizations are under increasing pressure to enhance the diversity of their workforces to satisfy client/customer expectations. Many companies prefer to hire other businesses (vendors, contractors, service providers, etc.) that have a proven D&I track record.
Diverse companies also may have an advantage in recruiting as many desirable job candidates would prefer to work for inclusive and welcoming organizations. To this point, in a recent study that focused on Gen Z-ers, 77% indicated that a company’s diversity is a deciding factor in joining and/or staying with that company.6 Gen Z – or the iGen – is loosely defined to encompass the more than 60 million Americans born in 1997 or later, millions of whom are already beginning to enter the workforce. While Gen Z-ers represent the future of the workforce, Millennials are currently the largest demographic and they too “actively look for diversity and inclusion when sizing up potential employers.”7 Employers hoping to attract and retain talent cannot afford to disregard the value that candidates and employees place on workplace diversity.
Implicit Bias Training
Given all of these very real concerns, an increasing number of employers have signed up for implicit bias training initiatives in recent years. The goal of the training is to not only help individuals recognize that these biases exist—but that such biases can be “disciplined.” As you might expect, training programs vary considerably but most try to educate attendees about implicit bias by exploring relevant concepts and definitions, examine how our brains process information, introduce learners to relevant research, and provide real-world examples of how biases can present in the workplace. Some curricula may discuss – or encourage – attendees to take the Implicit Association Test (IAT), a popular online test developed by researchers that seeks to measure a participant’s attitudes and beliefs.8 Most implicit bias training modules also typically suggest some steps that attendees can take to increase self-awareness in an effort to mindfully counteract their unconscious inclinations in their daily dealings. Training that exposes participants to techniques for slowing down decision-making—or giving their “conscious selves” time to check any assumptions made by their “unconscious selves”—can be very effective.
Proponents of such training efforts are not only enthusiastic (like your HR team!) but have some data to support their position. Several studies have shown that in-depth, motivational, forward-thinking implicit bias training can produce positive effects.9 In one study, for example, the proportion of women hired as faculty members at one university increased (from 32 to 47%) in academic departments that had received gender bias habit-breaking training; other departments, without training, showed no change.10
Nonetheless, implicit bias training initiatives certainly have their skeptics—and well beyond Schenectady. One common criticism is that anti-bias training may not necessarily require attendees to do anything affirmative after the session ends, making it feel like corporate “lip service.” Detractors go further by arguing that it is pointless and unhelpful to inform people that they carry around unconscious biases without arming them with strategies to mitigate the problem.11 Another concern raised with this type of training is its focus on individual biases and personal change.
Indeed, other critics contend that implicit bias training can exacerbate discrimination in the workplace. And you can see the logic: if we’ve explained to people that it is a normal human condition to act on hidden prejudices, are we giving them permission to be biased? At least one study found that raising awareness of stereotyping can normalize it, leading to unintended consequences.12
Notwithstanding these critiques, is it really accurate to say that “Implicit bias training doesn’t work,” though? Of course not. To do so would suggest two misconceptions: (1) that all implicit bias training courses are the same; and, (2) that all organizations have the same level of post-training commitment and/or resources to implement the appropriate structures and create the normative behaviors that are needed for sustainable and meaningful change.
The right kind of implicit bias education training and education is always a great start. However, the real work must begin after the facilitators have left the building. Accordingly, employers should give careful thought to post-classroom messaging, techniques for reinforcing the principles modeled by members of their most senior ranks, and implementing wider assessments of and/or revisions to any deficient organizational systems and practices to effect real culture change.
So before you judge too harshly, Dear Skeptical, it’s important to remember that proponents of implicit bias training typically share many of these same concerns. Many well-qualified training providers agree, for example, that sessions should provide attendees with concrete skill-building tools they can use to modify – or at least monitor – their behavior beyond the classroom. Moreover, serious training providers recognize that unconscious bias training ideally should be but one component of an organization’s overall D&I efforts. In other words: even its biggest cheerleaders don’t pretend that implicit bias training is a cure-all.
Legal and Corporate Concerns
Aside from any practical concerns about implicit bias training (or other D&I initiatives), you are probably wary of any scenario that could come back to haunt the company. As you know, lawyers look at the world from a different perspective. No rose-covered glasses here! We can find risk lurking in any situation and tend to proceed cautiously.
As GC, it is your job to recognize and mitigate risks to protect your organization. I understand your concerns about providing unconscious bias training wherein any unartfully conceived materials that are developed for such sessions theoretically could be discoverable and potentially harmful. You might also wonder if or how such training could be used against your organization in reverse discrimination claims.13
To top it off, your position also requires you to mediate the interests of different departments within the organization. Your HR team presumably does not perceive any potential downside to the training proposal. The managers overseeing daily operations would look at this idea from yet another point of view. And members of the PR team and C-suite likely have their own distinct opinions. While the decision about training may be yours to make, I certainly understand that there are numerous stakeholders to consult and appease, all of which renders the process even more complex and delicate.
Ultimately, employers must make sensible business decisions about the types of Diversity & Inclusion initiatives to promote – including implicit bias training. I assure you, Dear Skeptical, that you are not alone, either in questioning the suitability of this training or in juggling input from various internal stakeholders.
When evaluating D&I training propositions, it is important to realistically consider all of the pros and cons in terms of your specific organization, and to rely on legitimate, current resources. Employers might also consider whether and how legal privileges might protect certain communications and assessments when deciding how to proceed, and who to involve in those decisions. Strive to partner with experienced, proven service providers who are in tune with your organizational goals, legal concerns, and workplace culture – both existing and envisioned.
In the final analysis, before rolling out any new training initiative, organizations should be extremely deliberate about how such programs are structured, messaged, delivered, and supported after the formal training concludes. In so doing, Dear Skeptical, you might well conclude that implicit bias training is worth doing, and worth doing right!
1 See, e.g., Jessica Nordell, Is This How Discrimination Ends?, The Atlantic, May 7, 2017. As noted in the article, for example, studies have shown that Latinos receive less pain medication than similarly-situated white patients, and that teacher have different expectations and attitudes toward obese children.
2 See, e.g., Dina Gerdeman, Minorities Who 'Whiten' Job Resumes Get More Interviews, Harvard Business School Working Knowledge, May 17, 2017; Lincoln Quillian et al., Meta-analysis of field experiments shows no change in racial discrimination in hiring over time, PNAS Early Edition, Sept. 12, 2017.
3 See Debra Cassens Weiss, Partners in study gave legal memo a lower rating when told author wasn't white, ABA Journal, Apr. 21, 2014.
4 See Yueqi Yang, Studies: Performance Reviews Are Biased Against Women, Philadelphia, Nov. 19, 2015; see also Paola Cecchi-Dimeglio, How Gender Bias Corrupts Performance Reviews, and What to Do About It, Harvard Business Review, Apr. 12, 2017.
5 See, e.g., Vivian Hunt et al., Delivering through diversity¸ McKinsey & Co. (Jan. 2018) (updating study and reaffirming “the global relevance of the link between diversity—defined as a greater proportion of women and a more mixed ethnic and cultural composition in the leadership of large companies—and company financial outperformance”); Vivian Hunt et al., Why Diversity Matters, McKinsey & Co. (Jan. 2015) (finding that companies in the top quartile for racial, ethnic, and gender diversity are “more likely to have financial returns above their respective national industry medians”); Erik Larson, New Research: Diversity + Inclusion = Better Decision Making At Work, Forbes, Sept. 21, 2017 (finding that inclusive teams made better decisions 87% of the time and did so faster, with fewer meetings); see also New research from The Peterson Institute for International Economics and EY reveals significant correlation between women in corporate leadership and profitability, EY (Feb. 8, 2016) (reporting that an entity with 30% or more female leadership “could add up to 6 percentage points to its net margin,” based on a study of nearly 22,000 publicly-traded companies in more than 90 countries).
6 See, e.g., Ashley Stahl, Gen Z: What To Expect From The New Workforce, Forbes, Sept. 26, 2018.
7 See Reva Nelson, What Workforce Diversity Means for Millennials, Monster.com (citing the results of a 2016 study, which showed that 47% of millennials weigh diversity when contemplating a new job); see also 2018 Deloitte Millennial Survey, Deloitte (2018).
8 More information about the IAT is available from Project Implicit, here.
9 See, Jessica Nordell, Is This How Discrimination Ends?, The Atlantic, May 7, 2017; see also Jason A. Okonofua et al., Brief intervention to encourage empathic discipline cuts suspension rates in half among adolescents, PNAS, May 10, 2016 (showing a major reduction in suspension rates for students whose teachers received implicit bias training that emphasized an ‘“empathic mind-set’ to student discipline”).
10 See, e.g., Jessica Nordell, Is This How Discrimination Ends?, The Atlantic, May 7, 2017.
11 See, e.g., Riia O’Donnell, Unconscious bias training can only take you so far, HR Dive, May 8, 2018; Doyin Atewologun et al., Unconscious bias training: An assessment of the evidence for effectiveness, Equality and Human Rights Commission, Mar. 2018; Mike Noon, The pointless distraction of unconscious bias training for workplace racism, Work In Progress, May 15, 2018; Mike Noon, Pointless Diversity Training: Unconscious Bias, New Racism and Agency, Work, Employment and Society, Sept. 1, 2017.
12 See, e.g., Michelle M. Duguid and Melissa C. Thomas-Hunt, Condoning Stereotyping? How Awareness of Stereotyping Prevalence Impacts Expression of Stereotypes, 100 J. of Applied Psychol. 343-59 (Mar. 2015).
13 See, e.g., Bissett v. Beau Rivage Resorts, Inc., 442 F. App’x 148, 152-53 (5th Cir. 2011) (plaintiff unsuccessfully argued “that HR conducted a one-sided investigation so she could be fired to increase diversity” and that she “was a victim of [the] diversity policy,” which consisted of a commitment to maintaining a workforce reflective of the community).