Implicit Bias, Liability and Cities

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We all have bias. An inescapable reality of humanity, bias is the evaluation of one group and its members relative to another and can be implicit or explicit.

Implicit bias refers to the way people unconsciously and sometimes unwillingly exhibit feelings, attitudes, and judgments towards other individuals and groups. By understanding the implicit biases embedded in ourselves, we begin to recognize and work to eliminate those biases that increase disparities and liability to local governments.

This year at the 2019 NLC-RISC conference, General Counsel for League of Minnesota Cities Patricia Beety and NLC’s REAL Program Director Rita Soler Ossolinski joined forces to lead a session summarizing social science research on implicit bias. The session focused on what risk pool decision-makers need to know about the potential impacts bias has on jurors, judges, mediators, and even pool staff and members.

Devastating for Communities of Color

Institutional bias continues to have large scale impacts on communities of color. How we are socialized strongly impacts our biases—to associate certain groups of people with certain characteristics or behaviors. These associations assign value and a hierarchy based upon society’s narratives, values, and norms.

These social structures manifest in the way some teachers may have lower expectations of African and Latino American students than of white students; in the way some doctors are less likely to prescribe painkillers to black patients than to white patients; and in the way police officers are more likely to see a black person as a criminal than a white person. In the United States, there is a strong implicit association between African Americans and criminal activity.

Institutional implicit bias is not obvious and requires intentionality by the government to develop a process that includes training and tools to better understand how policies benefit and burden communities differently.  Institutional implicit bias results in policies that negatively impact one group unintentionally. An example is a police department’s use of ‘stop and frisk’ style interventions that result in racial profiling.

A Target for Intervention in the Courtroom

For decades, civil claim handlers, managers and attorneys have known of prohibitions against explicit actions that negatively impact certain groups.  All pools should be intimately familiar with state and federal anti-discrimination legislation, starting with the Civil Rights Act of 1964.

Explicit discrimination in the courtroom was addressed in a 1986 decision by the U.S. Supreme Court. In criminal case Bateson v. Kentucky, finding a prosecutor’s dismissal of jurors based solely on their race was ruled unconstitutional.  The Bateson challenge has been extended beyond criminal cases to all civil trials in federal court and beyond race-based situations to include where jurors are excluded based on gender. While far too many examples of valid Bateson challenges continue, as does explicit discrimination in the justice system, in recent years the topic of “implicit bias” in claims handling and litigation involving governmental entities is being called out for attention and correction.

It is imperative—for fiscal, moral, and public accountability reasons—that government risk pools understand and address the unjust consequences of implicit bias.  In litigation and the courtroom, expect trial counsel to address implicit bias just as they do the Bateson Challenges. Many judges are already starting to use jury selection questionnaires and special jury instructions to help jurors understand that racial and other biases are hard-wired and, without correction, can and will influence verdicts resulting in injustice.

Acknowledgment Helps Eradicate the Problem

If we do not acknowledge our implicit biases, the problem will be exacerbated. Suppressing or denying biased thoughts can actually increase prejudice, not eradicate it.

Accountability demands deep examination—it does not allow for “that’s just the way it is” or “good intentions” to obscure the ability to examine and reflect on the bias. A proven strategy to impact our bias is to broaden our social circles and experiences while examining our actions and beliefs.

Likewise, government risk pools can address implicit bias by:

  • Normalizing the conversations about automatic prejudices—acknowledging everyone has them;
  • Implementing training for all staff in implicit bias recognition, testing, and cognitive correction; and
  • Being mindful of who is at the table and what perspectives are missing.

Taking steps to diversify claims committees, panel counsels, mediators, experts, and other vendors, challenge outside counsel to do the same. Encourage drafting legal briefs with counter-stereotypical examples as one small-but-important step that can be taken immediately.

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About the Authors:

Rita Soler Ossolinski is the program director of National League of Cities’ Race, Equity, and Leadership (REAL) department.

 

 

 

Patricia Beety is general counsel for League of Minnesota Cities.