What Business Can Learn From the Courts For Combating Unconscious Biases

Unconscious bias is a term that has an increasing presence in conversations of diversity and inclusion. In simplest terms, unconscious bias refers to biases an individual holds that they are not typically aware of, hence the designation of “unconscious.” Remember, unconscious bias is a universal issue! “Results of the Implicit Association Test (IAT) taken by millions of people show that 75 [%] of test-takers have a pro-white bias,” for example. In other words, we aren’t navigating these challenges alone. But because so many of us don’t realize we have these biases, unconscious bias can tremendously impact the ways in which we navigate society. Sometimes, these situations may be life or death. Consider: unconscious bias in the courtroom, particularly amongst juries.

Unconscious bias in courts of law can present itself in many ways, including racial bias, gender bias, ableism, religious bias, and more. Racial bias is the most pervasive, with numerous studies documenting its presence in jury decisions. One study found that when mock jurors were presented information about a masked gunman, some shown photos of a man with light skin and others shown a man with dark skin, they were more likely to determine the dark-skinned man to be guilty than the light-skinned man based on the same evidence. Other studies support this evidence of implicit racial bias, demonstrating that “[w]hite juries in criminal trials are more likely to convict Black and Latinx defendants than white defendants on similar facts.”

Implicit bias in courts of law is not exclusive to juries, of course; a study suggests that lawyers tend to view female judges less favorably than male judges, interpreting their behavior as either too masculine for a woman or not masculine enough to fit the expectations of a historically-male position. Judge Mark W. Bennett outlines some of the most common ways unconscious bias can present itself in the courtroom:

• Implicit biases affect [a] client’s choice of lawyers.
• Unique caseload pressures, combined with implicit biases, may result in initial [prejudiced] evaluations by lawyers, such as public defenders, which impact future case decisions in significant and potentially undesirable ways.
• Implicit biases unknown to prosecutors may dramatically affect prosecutorial discretion in undesirable ways.
• Implicit biases affect lawyers’ evaluations of judges.
• Implicit bias affects jurors’ memories, their interpretation of ambiguous evidence, and the presumption of innocence in ways often averse to minorities.

Because juries are the ones with the ultimate power to determine a verdict, most concentration toward the effects of implicit bias falls upon them. Simply put, unconscious bias can drastically color jurors’ evaluations in the courtroom, from how they interpret a lawyer’s capability (e.g. believing white litigators to be more capable than litigators of color) to how they judge the credibility of a witness (e.g. dismissing the testimony of a Black individual because Black communities are stereotyped as being less trustworthy than white communities). As a result, unconscious bias can dangerously sway a jury’s verdict in life-or-death situations; past studies have shown that juries are more likely to sentence Black individuals to death for a murder conviction, particularly when the victim was white. Those results are especially frightening when considered in tandem with the aforementioned fact that Black defendants are more likely to be convicted than white defendants on the same evidence, meaning an innocent Black person is more likely to receive a guilty verdict as a result of unconscious bias.

Because unconscious bias can unwittingly be the deciding factor in jury verdicts, including those of life or death, it is critical that the legal system enlighten individuals on these biases. Fortunately, steps are being taken, and while not foolproof, these strategies are moving the courts in the right direction:

1. Increasing Awareness

Seeing as many people have never heard of unconscious bias, the first step is educating jurors on what unconscious bias and how it presents itself, such as using the educational video created by the Western District Court of Washington. Some courts have jurors take Harvard’s Implicit Association Test, which takes about 10 minutes to complete and informs jurors of the unconscious biases they themselves possess. Judge Mark W. Bennett, mentioned earlier in this article, would provide unconscious bias training himself to prospective jurors, putting special emphasis on the presumption of innocence unless and until the prosecution demonstrated guilt beyond a reasonable doubt. He also had jurors sign an affirmation at the end of his training vowing that they’d conduct a fair trial; similarly, at the end of the trial itself, jurors had to sign a certification that no biases had been involved in their verdict.

In other words, a jury can only be expected to combat their unconscious biases once they know how to look for them, hence the necessity of education on the subject.

2. Ensuring Diverse Juries

The US legal system has a history of all-white juries being expected to provide fair trials to defendants of color during the heights of segregation and other explicit anti-Black laws. Nowadays, social awareness has risen, and pushing for equity and fighting against unconscious bias means educating jurors on implicit bias and engaging more diverse juries (rather than allowing homogeneity to reign). Diversity amongst jurors has similar effects to diversity in other facets of life, such as the workplace. Simply put, more diverse juries are less likely to produce biased verdicts because diversity encourages greater deliberation and produces a more level playing field amongst jurors. In order to ensure verdicts reflect the reality of a case, juries should reflect the reality of our society: diverse in race, age, gender, ethnicity, religion, sexuality, ability, and more.

3. Encouraging Dialogue

A final critical step courts are taking to combat unconscious bias is the simple operation of encouraging dialogue, including but not limited to during voir dire, when a lawyer has an opportunity to question prospective jurors and can thus engage them in discussion of implicit bias. The King County Bar Association eloquently expresses the inherent value of dialogue surrounding unconscious bias:

“[We] can have an intelligent and fruitful conversation with jurors about implicit bias without alienating them or making anyone feel like an idiot. It’s worth the effort, because unconscious bias and stereotypes that lurk below the surface can pose a substantial risk to [a] client’s case.”

When jurors, lawyers, and judges alike are allowed to hold active discussion about implicit bias, it ensures the presentation and judgement of the case at hand is more likely to be equitable and less likely to be underlain by unconscious bias.

Again, awareness of unconscious bias in the courtroom is critical because a person’s future may be at stake, such as facing death or life in prison; even a punishment as seemingly inconsequential as a fine can irreparably damage a defendant’s reputation. And this is only thinking in terms of the legal system! How might unconscious bias affect other aspects of society, including — or perhaps especially — the workplace?

Just as a person’s life can be placed in the hands of a jury, their life can be placed in the hands of an employer, too, as an individual depends on their position for their livelihood and well-being. Efforts must be made to combat unconscious bias in the workplace in ways not dissimilar to the approach of the courts: 1) educate employees at all levels on unconscious bias; 2) ensure diversity in hiring and promotions; and 3) encourage dialogue on the presentation and consequences of implicit bias in the workplace.

At the end of the day, the path we must take to combat unconscious bias is a road worth travelling, no matter how rocky it may be. With education and dedication, we can foster a culture of inclusion in the courts, the workplace, and in every aspect of our lives.

Dima Ghawi is the founder of a global talent development company with a primary mission for advancing individuals in leadership. Through keynote speeches, training programs and executive coaching, Dima has empowered thousands of professionals across the globe to expand their leadership potential. In addition, she provides guidance to business executives to develop diversity, equity, and inclusion strategies and to implement a multi-year plan for advancing quality leaders from within the organization.

Reach her at DimaGhawi.com and BreakingVases.com.