Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
It is one of those research findings you would expect to be true, like: “Studying improves performance” or “Happier people are more productive.” But it is reassuring to find that research supports the notion that legal professionals are less likely to exhibit bias based on gender. After all, it does make sense that those in the profession dedicated to justice and fairness, would be less likely to act on stereotypes that disadvantage women. It is useful to check on some of these assumed findings, however, because they aren’t always bourn out in the research, and they aren’t always true to the degree or in the way that you would expect. Gender bias in the law falls into that latter category. After all, women have made up a majority of law school classes for a couple of decades now, but still have not come close to parity in partnerships, law-firm management, or representation on the bench.
One possible explanation for that continuing gap is that implicit biases still persist, even among legal professionals. That part actually has been shown in the research: When measured via the “Implicit Association Test” that I’ve written on previously, those with legal training are about as likely as the rest of the population to harbor bias. This was shown in a study of law students (Levinson & Young, 2010) and, more recently, in a study of working arbitrators (Girvan, Deason, & Borgida, 2015). In both studies, the education and experience of the law was not an antidote, or even a significant mitigator, of bias. The difference, however, is that the legally trained were less likely to act on that bias in either experimentally-manipulated or real-world decisions. As the latter source concluded, “There are important differences between the decisions made by trained and untrained decision makers that may enable trained professionals to suppress or otherwise control gender bias.” One explanation is that the law includes systems of accountability that create consequences for acting on bias, but the researchers found that it was more likely the effect of training and experience: Learning the law causes people to focus on the right criteria for a decision, and that creates less space for bias to operate. In this post, I’ll take a look at the research and a few implications.
The Research: Bias and Buffers
It’s true that we’ve come a long way on gender bias…but not far enough to escape some deeply held implicit biases. The Implicit Association Test has brought a new way to explore those biases with a test that doesn’t suffer from the “social desirability” effect of attitudinal scales. Instead of relying on explicit beliefs, the tests set up a categorization exercise while measuring reaction time in milliseconds. It turns out that we reliably perform a little bit quicker when a task is consistent with implicit associations (for example, matching positive words with faces that we like) than when it is inconsistent.
When that process is applied to gender biases, men are still associated with competence, rationality, assertiveness and confidence, while women are associated with emotion, dependence, and gentleness. In other words, the stereotypical lawyer still seems more like the stereotypical man.
And that is what the research has found, even among those with legal training. Justin Levinson and Danielle Young of the University of Hawaii at Manoa found that law students are much like other populations in having a pervasive gender bias. A diverse group, including both male and female law students, tended to associate men with careers and women with home and family, and implicitly saw judges as male rather than female. Similarly, Eric Girvan, Grace Deason and Eugene Borgida of the Universities of Oregon, Minnesota, and Wisconsin, also found similar levels of implicit bias when comparing undergraduate psychology students and experienced arbitrators.
The difference, in both studies, related to the likelihood of acting on those biases when it came to making legal decisions. Levinson and Young, for example, found that their law students were generally able to set aside those implicit biases and make decisions in a gender-neutral manner in all of the three settings tested: candidate hiring, selection of desirable traits for appellate judge, and reallocation of student organization resources in response to budget cuts. They concluded that it is “possible for people to hold harmful implicit biases and simultaneously hold egalitarian implicit norms that allow them to resist those biases.” Girvan, Deason and Borgida also found that legal training made a difference when comparing students to labor arbitrators. “We found that the overall decisions of untrained student participants regarding individuals in stereotypically masculine settings, were biased against female plaintiffs. In contrast, they write, “professional arbitrators’ decisions in mock and real arbitration cases did not show evidence of gender bias from role incongruity, suggesting that training and experience can attenuate at least the broader, socially-shared forms of gender bias. ”
It is reassuring, to some extent at least, that legal training acts as a buffer against gender bias. That may be one factor in saying that in some situations, female parties or litigators might prefer resolution by arbitration rather than jury. More broadly, however, the results carry a few additional reminders.
Treat Implicit and Explicit Bias as Two Different things
These research results remind us that, when it comes to implicit and explicit biases, one is not the measure of the other. As much as our system of voir dire might be based on asking for explicit attitudes, a denial of bias should not be trusted in most settings. As Girvan, Deason and Borgida write, “Reaction time measures of implicit attitudes often predict judgment and behavior better than measures of explicit attitudes, particularly in socially-sensitive domains like those involving intergroup relations.” While we are unlikely to be using such tests in assessing fact finders anytime soon, it is a good reminder to take expressed attitudes in these areas with a grain of salt, or two.
Context is King
When it comes to law students and arbitrators, the research shows that the distinction between implicit bias and explicit decisions leans in the right direction: The legally trained are still products of society and still carry implicit biases, but they’re able to overcome them to a large extent when making legal decisions. As Levinson and Young write, “Some participants can overcome their implicit biases either because they have high-implicit motivations to avoid prejudice or they are temporarily influenced by their egalitarian surroundings.” That suggests a question that I believe the research has not yet answered: When it comes to gender bias against advocates, parties, or witnesses, are jurors more influenced by their implicit bias or by the “temporary identity” they assume when in the egalitarian context of the courtroom?
Individual Biases Still Matter
When talking about groups like “jurors” and “arbitrators,” it is critical to remember that what is true at the level of group averages, isn’t necessarily true of the individual. Specific attitudes still matter. Girvan, Deason and Borgida, found, for example, that arbitrators’ explicit attitudes about gender predicted their decisions for or against parties by gender in actual labor arbitrations. “With respect to explicit attitudes, we found that arbitrators high in benevolent sexism were more likely to overturn the termination when the grievant was a woman, but not when the grievant was a man.” In addition, arbitrators higher in hostile sexism were marginally more likely to rule against a female party. So when you need to know, it still helps to ask or investigate.
Other Posts on Gender:
- Don’t Count on Gender Differences When it Comes to Compassion
- Note the (Small) Difference a Female Jury Can Make
- Female Attorneys: Expect (But Don’t Accept) a Subtle Bias in the Courtroom
Girvan, E. J., Deason, G., & Borgida, E. (2015). The generalizability of gender bias: Testing the effects of contextual, explicit, and implicit sexism on labor arbitration decisions. Law and human behavior, 39(5), 525. URL: http://psycnet.apa.org/journals/lhb/39/5/525/
Levinson, J. D., & Young, D. (2010). Implicit gender bias in the legal profession: An empirical study. Duke Journal of Gender Law & Policy, Vol. 18, No. 1, URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1790742
Image credit: 123rf.com, used under license, edited.