Warning About Implicit Bias Awareness Tests

 


 

We all know that not all bias is conscious.  Some bias is unconscious—often, referred to as implicit bias. 

This means that we may be engaging in bias without even knowing we are doing so.  This is most likely to occur when we make snap judgments. 

For example, most of us have read about, or at least heard of, studies that demonstrate the name on an application affects the likelihood a candidate will be selected for an interview. Men do better than women and candidates with names that are often associated with people of color  are less likely to be selected than those with names that are not. In other words, Kesha will get fewer interviews than Karen, and Karen fewer than Kevin.

To help bring implicit bias to conscious awareness, some employers are using tests designed to measure implicit bias. One popular example is the Harvard Implicit Awareness Test (“IAT”).

However, these tests are far from conclusive.  There is substantial debate in the psychological and neurological communities about whether the Harvard IAT or other tests truly measure implicit bias.

Further, these tests create evidence that may be used against employers.  Let me give you an example.

Your executive team members take implicit awareness tests.  Cindy is your Chief Information Officer, and the results of Cindy’s implicit awareness test suggests an implicit bias in favor of women.

Cindy promotes Susan over Zachary. Zachary’s counsel argues that the results of Cindy’s test help establish gender bias.

Are the test results admissible at trial?  The law is not yet settled but the answer may be “yes.”

What do you do if admissible?  Hire an expert to discredit the test you administered?  

At a very minimum, you need to be aware of this risk.  My raising this legal risk is not hypothetical..

Better yet, consider ways to get at implicit bias without creating admissions that can ravage you in litigation.  The options are as vast as your creativity.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship. 

 

The SHRM Blog does not accept solicitation for guest posts.
COMMENTS 3

Comments

This is a really great point, Jonathan. I remember taking some of the IAT during my grad years, and I agree that they can be detrimental for employers. It's nearly impossible to be completely unbiased, especially with societal norms and ads blaring in our ears and eyes at all times. The best plan of action is to strive to be as objective as possible, and make sure the public knows your tactics! Tactics that reduce the probability of biases swaying hiring decisions include collaboration and HR tech (source: http://bit.ly/2xgKg22). Take action on thwarting biases, not calling more attention to them! Thanks for sharing this.

Better yet use the implicit bias tests as a baseline for training/conversation, not an employer requirement. I recently facilitated a program with a group of managers where we did just that. Each participant took two tests of their choosing among the long list of IATs. We asked that these two not include the test about presidential bias or women in science studies. The instructions included introductory materials. They were not required to report results to the employer. The content was used as part of a discussion to identify implicit bias and takes steps to minimize any potential affect on work and work relationships. Some people disagreed with results, we talked about that too. This was all part of very productive conversation designed to raise awareness, not slap people with labels.

I have to say Johnathan's point is pretty ridiculous and unfounded. Courts have pretty consistently shown little tolerance of attorneys who badger people over efforts to address decision-making disparities. Frankly any attorney worth her salt would shut this line of questioning/inquiry down immediately.
And if your company identified someone with a possible bias issue, and not asked them to explain/justify their decisions, well then you probably deserved to get sued. And if your attorney allows that person to be deposed without being able to describe a defensible reason for selecting one candidate over another, you deserve to lose.
The problem with "strive to be objective" is that everyone THINKS they are objective, but without feedback they are blind to their own bias. There is a ton of recent research on this topic.
And ignorance of your own bias is not a defense. Literally saying "I flipped a coin" is a reasonable defense!

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