Increasingly, law firms are incorporating programs to raise awareness and understanding of unconscious bias in their diversity and inclusion initiatives. For good reason, because recognizing how attitudes and stereotypes impact our decisions and actions in an unconscious way—and learning how to overcome those unconscious biases (sometimes also referred to as implicit biases)—can help to increase diversity of representation and, in turn, promote inclusion in the legal profession.

This is undoubtedly important from a social justice perspective because, as lawyers, we are champions for justice and equality. It is also good for business because we know from the research that diverse teams and organizations have a competitive advantage in making better decisions and financially outperforming their less diverse cohorts. See, e.g., ”Delivering through Diversity,” McKinsey & Company, January 2018. And, corporate clients continue to state their preference for hiring law firms that embrace diversity and inclusion, as most recently demonstrated by the “Open Letter to Law Firm Partners” that was signed by over 170 general counsel posted to LinkedIn.

Understanding unconscious bias is good for business in yet another sense—lawyers who are knowledgeable about unconscious bias will better serve and counsel their clients. Business clients face similar challenges to law firms when it comes to diversity and inclusion and often ask the same questions: How do we recruit and retain a diverse workforce? How do we cultivate an inclusive workplace? How do we develop effective policies? How do we avoid exposure to discrimination claims? Lawyers who have been attentive on the topic of unconscious bias and vigilant about its impact on decision-making are going to be better equipped in advising their clients and helping them to mitigate risks.

Unconscious Bias Education

Employers may be aware of the concept of unconscious bias, but may not understand on a practical level the impact of unchecked unconscious bias in the workplace, including that unintentional decision-making can increase a company's exposure to potential claims of discrimination or, at the very least, create bad press. A lawyer can provide significant value by proactively advising clients about the implementation of unconscious bias education to mitigate risk.

Take, for example, last year's incident at a Philadelphia Starbucks, where a manager called the police on two African American men who were sitting in the café but had not purchased any food or drink items. After a video went viral of the men being taken out of the store in handcuffs, boycotts spread across the country, the company's CEO issued a formal apology, and thousands of stores were shut down for a day of implicit bias training. While it's impossible to know whether the manager's decision to call the police was motivated by intentional discrimination, unconscious bias, or both, this incident serves as an example for how one employee's actions can have an outsized impact on the company as a whole. Had unconscious bias education been implemented sooner and regularly engaged in to reinforce the company's workplace values, it is possible this highly publicized situation could have been avoided altogether.

Employment Litigation Advice

As unconscious bias continues to gain more attention, it seems likely that it will play a more significant role in workplace discrimination claims. However, unconscious bias appears incompatible with Title VII of the Civil Right Act, or the legal framework of other anti-discrimination laws, which prohibit intentional discrimination, since by its nature, unconscious bias is unintentional. But, a lawyer attentive to the rulings on the admissibility of unconscious bias testimony can have a strategic advantage over a lawyer who does not understand the implications of unconscious bias.

The Equal Employment Opportunity Commission's definition of “intentional discrimination” includes “unconscious stereotypes,” but courts are generally hesitant to go as far. However, courts also seem reluctant to dismiss the existence of unconscious bias in the workplace and often provide opportunities for its introduction and use through expert testimony.

In 2017, the U.S. Court of Appeals for the Third Circuit acknowledged that implicit bias testimony may be admissible in certain circumstances, but ultimately determined that the district court did not abuse its discretion in excluding expert testimony by Anthony Greenwald (the psychologist responsible for the Implicit Association Test, which measures implicit bias) on age-related implicit bias studies in connection with a reduction-in-force case, see Karlo v. Pittsburgh Glass Works, 849 F.3d 61, 84–85 (3d Cir. 2017). There, the district court held Greenwald's testimony did not fit the case as his population-wide statistics only had “speculative application” to the defendant and its decision-makers, and that disparate impact claims do not require examination into an employer's state of mind.

Earlier this year, in a Title VII national origin case, a federal court in Rhode Island acknowledged that “prohibitive implicit and cognitive biases can permeate interviews,” especially when an employer disregards objective criterion for determining qualifications, as in Imbriglio v. Rhode Island, No. CV 16-396-JJM-LDA, (D.R.I. Apr. 23, 2019). When granting the employer's motion for summary judgment, the court noted the plaintiff's failure to provide any expert witness testimony on implicit bias or introduce other admissible testimony to support her claim. This point suggests that evidence of implicit bias may have been considered by the jury if expert testimony was introduced by the plaintiff. This decision also cited a case from the U.S. District Court for the Northern District of Illinois where a social psychological expert opined that the defendant had a corporate culture that fostered implicit bias, which testimony the court relied upon as circumstantial evidence of discrimination, see Martin v. F.E. Moran, No. 13 C 3526 (N.D. Ill. Mar. 30, 2018). This sampling of cases demonstrates that unconscious bias evidence is recognized by courts, although not always introduced or admitted.

Awareness of Unconscious Bias Rewarded

A law firm's consciousness about and attention to unconscious bias and its implications can set it apart from its peers. Whether that means creating value internally within the law firm itself with the result that diverse talent is retained and superior results are achieved, or whether that means creating value externally with clients in the form of differentiated expertise and preferential treatment by clients who value diversity and inclusion, awareness about unconscious bias can give a law firm a competitive advantage over its less aware cohorts.

Sophia Lee, a partner with Blank Rome, concentrates her litigation practice in the energy industry, handling commercial, environmental, products liability and toxic tort matters.

Asima J. Ahmad is a senior associate in the firm's labor and employment group.