By Lawrence P. Schaefer |
I’m very privileged to have been asked by Minnesota Lawyer’s Mutual to facilitate a panel discussion on July 16th on “implicit bias,” where vignettes involving indulgence of subtle bias will be portrayed by local actors to help the defense bar understand how implicit bias works. I’ve ben told I’m the first “plaintiffs lawyer” asked to present to this group of defense lawyers. The subject of implicit bias is tremendously important to me, because I’m convinced after nearly three decades of advocacy for discrimination victims in the workplace that most discrimination stems from directly from this phenomenon. Truly understanding it is the first step toward enforcing, and ultimately establishing, true equal employment opportunity in the workplace.
Defense lawyers representing companies my clients are suing often, at some point in our ongoing dialogue about the case, ask me “do you really think this manager is racist/mysoginist/ageist, etc.,” or something to that effect. Before even hearing my response, they’ll go on to tell me how that can never be proven, as this same managers has friends/family members, etc. in this same protected class. My typical response often surprises them, as it is based firmly in my growing understanding of implicit bias. I tell them I have no intention of taking on the burden of proving racism/sexism/ageism, etc, but that all I need to demonstrate on behalf of my client is disparate treatment, i.e. treating my client differently on the basis of protected class status. I sometimes go on to explain that most disparate treatment arises from managers indulging stereotypes, or having “discomfort” in relating to someone who is not like them, and not because of any active or overt bias.
When I then get a response like, “well then that’s not “intentional discrimination,”’ I rarely take the time to try to educate them on the subject of implicit bias and its devastating effect in the workplace. I know at that point I have an opponent who is represented by someone with no real understanding of how intentional discrimination actually manifests itself. I then save my efforts to educate for the judge, knowing my opponent will likely make it much easier.
Implicit bias is just what the title suggests – the reliance on implicit cues and assumptions that results in decision making and overt action that can produce a different treatment for the subject. It’s treating a minority differently because you’re not comfortable interacting with someone so different than your personal life experience, it’s assuming an older employee can’t adapt or learn as quickly as a younger employee, it’s viewing women as more passive, less able to lead, etc. While I still unfortunately have clients who face overt bias in the workplace, and shocking comments reflecting this bias, this is the exception. Most discrimination is far more subtle, and understanding how implicit bias manifest itself is the key to effectively advocating for clients in those circumstances.
As one of the most recognized plaintiff’s lawyers nationwide, Larry Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He concentrates his practice representing people who are injured through employment discrimination practices. Larry serves as the firm’s CEO and head of litigation.
