Sunday, May 27, 2018



 Ashley Lattal

Ashley Lattal, The Hidden World of Unconscious Bias and its Impact on the “Neutral” Workplace Investigator, 24 Journal of Law & Policy 411-466, 426 - 444 (2016) (260 Footnotes Omitted)(Full Article)

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The science of unconscious bias, otherwise referred to as implicit bias or implicit cognition, studies an array of cognitive processes that unconsciously impact human decision-making processes and judgments. In the past decade or so, researchers have examined “the distinction between explicit and implicit mental processes in relation to racial and other forms of bias.” The research has demonstrated the existence of unconscious biases, which are mental processes that operate outside of humans' consciousness, intentional awareness, or control, even in the face of introspection. This science has also raised serious doubts about whether human behavior is under conscious control.

This science is important for professionals, like workplace investigators, for whom impartiality comprises a critical component of their work. The average person assumes that workplace investigators can “cognitively process, evaluate and weigh the facts presented” in a neutral manner, but research challenges the accuracy of this assumption and shows that cognitive biases affect the way all people process information. For example, people often rely upon critical thinking errors and false stereotypes “to justify their initial, unreliable assessment.” Courts have increasingly expressed concern about actual or perceived biases in workplace investigations. In addition, courts and academics have recognized the impact unconscious biases have on mediators, juries, and judges, as well as on the effectiveness of laws.

While there are many kinds of unconscious biases, there are arguably two broad types that may have the most significant impact upon workplace investigators' efforts at neutral fact-finding-- unconscious biases towards social groups and those biases that lead to “tunnel vision,” including confirmation bias, lie bias, and trustworthiness bias.

Much of the most well-known research on unconscious bias has focused on implicit attitudes towards members of socially stigmatized groups. The research often refers to such biases as “implicit bias,” though the term is also used more broadly to encompass other kinds of unconscious biases. Until the late 1980s, psychological research analyzed stereotyping and discriminating through “observable behavior and self-reports;” in other words, through explicit measures. “[M]ost psychologists believed that ... attitudes, including stereotypes and prejudices, operated consciously ... [and] that individuals were aware of their own biases and prejudices.” Beginning in the “1990s, psychologists documented that attitudes have both ‘explicit’ [(or conscious)] and ‘implicit’ [(or unconscious)] indices.” Unconscious biases towards or against certain groups are based on social stereotypes or attitudes that have led to an association between a group and a trait. They are “automatically triggered by the slightest interaction with a target group member.” Research shows that implicit bias is widespread among the general public, and influences behavior in many contexts, including employment, medicine, law enforcement, and forensic science.

Implicit attitude measures reveal a far greater bias in favor of advantaged groups than do explicit measures. Manifestations of implicit bias often conflict with a person's explicit attitudes about a given group, a concept referred to as dissociation. “Dissociation [is] commonly observed in attitudes toward[s] stigmatized groups.” Studies indicate that dissociation begins in middle childhood (age ten or so) “as participants' explicit bias began to dissipate.”

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Unconscious biases are “rooted in the fundamental mechanics of the human thought process.” Scientists have found that human minds naturally stereotype as part of a “categorization” process, useful in simplifying our complex environment for more efficient cognitive functioning. Categorization has been described as “the most basic and essential of all cognitive processes”--without it, humans would be “engulfed in a tidal wave of details” and their “minds unable to cope.” Humans form schemas in which they group similar objects, events, ideas, and people, expecting these associated items to coexist in different settings. People or things that do not fit easily in a specific category “may be forced into a category regardless, thus reducing complexity, but introducing inaccuracy.”

While stereotypes have the benefit of permitting a “decision-maker to make rapid inferences and reduce cognitive effort” they also lead to oversimplified conceptions and misapplied knowledge. “As a result, stereotyping ‘per se, propels the individual down the road to bias.”’ These stereotypes are “‘categories that have gone too far,’ using personal characteristics such as race or gender as a proxy for personality traits such as hostility, intelligence, or weakness.”

“[P]sychologists have found that stereotypes arise when a person is as young as three years old and are usually learned from parents, peers, and the media.” As people grow older, their stereotypes “harden” and, while they may develop nonbiased (or explicit) views of the world, their stereotypes “become implicit and remain mostly unchanged even as they develop nonprejudiced explicit views.” The original beliefs “remain in the unconscious, waiting to be activated” and are easily and “automatically triggered by the slightest interaction with a target group member.”

Once developed, stereotypes are not easily changed. They are “self-perpetuating” and maintained even in the face of disconfirming data. As they help us “fill in missing information” in our environment, “data supporting the stereotype is encoded while data not supporting the stereotype is discarded.” It is also difficult to “forget” stereotypes. To do so requires “tremendous mental resources” and may, in fact, “lead to a ‘rebound effect’ in which the stereotype one tries to avoid is promoted.” This is because stereotypes are frequently and easily recalled, which reinforces them in people's minds.

Stereotypes also come from other psychological phenomena. They relate to the “human instinct to identify with a group or clan.” Further, “the motivation to boost self-worth also affects the activation and application of negative group stereotypes.” Stereotypes are also often justified and propagated by way of self-fulfilling prophecy. One commentator described this process:

[W]e use schemas to anticipate what a stereotyped group member will be like, how he or she will react, and how we should behave. Our anticipatory behavior toward the group member influences how the group member responds; in essence, the anticipatory behavior by the person operating under the stereotype influences and causes the target group member to engage in the “expected” behavior, thus confirming the stereotype regardless of the stereotype's accuracy.

Unconscious biases towards groups of people can have particularly negative impacts on neutrality in workplace investigations. Such biases may impact an investigator's views of the parties or witnesses to an investigation, despite explicitly held views, and thus taint how they conduct their investigations, analyze evidence, and assess credibility.


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