(Interview conducted in writing on July 25, 2022)
What does unconscious bias mean to you?
Unconscious bias describes assumptions that we make about others that are subconscious, we are largely not aware that we are making these assumptions, or acting on them. This class of bias is distinct from overt discrimination, as an individual is often not acting on a deeply held animus towards any particular person or community. This class of bias can be particularly difficult to catch, because it’s integrated with a lot of the unconscious beliefs that we use to navigate the social world. These assumptions allow us to navigate new situations based on similar experiences. Often we’ve been using these assumptions for decades. There are two typical ways this class of assumption can get us into trouble. First, is when they are based on information that is utterly divorced from reality, and when properly examined, are really just an expression of a broad stereotypes, crude caricatures, or actively discriminatory assumptions about individuals based on their identity. Second, is when we forget to see the person in front of us. Even if we’re very astride of particular social or political issues, it’s still important to check your broad assumptions about whether something that is salient to a community of a particular identity, is relevant or appropriate to ascribe to the actual living, breathing person in front of you.
Can you share any specific examples of unconscious bias you have experienced, or heard about, at any stage of the litigation process?
The classic one for many Black folks, which I’ve definitely had in some of my previous roles or from opposing counsel, is a baseline assumption that we’re not that bright. Accordingly, any pause or mistake is taken as confirming the bias that I’m not that smart, while a colleague with different identities may be consistently given the benefit of the doubt. This type of reaction can be expressed in a couple of ways, such as an instant discrediting of ideas, a condescending explanation, or the loss of opportunities based on this perception.
Another pet peeve of mine, which comes up a lot in legal practice is the description of Black orators as “surprisingly well-spoken” or “articulate”, I feel like I’ve been haunted by the word articulate my whole life. Every person who is saying these compliments is genuinely trying to be warm, but they’re part of a larger tapestry of behaviour over a lifetime. It’s such specific wording that I’ve seen used for Black folks, and is often twinned with an intonation of slight surprise or wonder, that it clearly communicates “you’re surprisingly good at this versus my expectation of what someone like you should be capable of."