ELIMINATION OF BIAS. Alan Bloom. Karen Palmersheim Locke Lord Date. Presented by:

Transcription

1 California Association of Health Plans Annual Conference ELIMINATION OF BIAS Presented by: Alan Bloom Care1st Health Plan Karen Palmersheim Locke Lord Date

2 Why Elimination of Bias Program? CA State Bar Required MCLE Course Societal Benefits: morality, diversity, leads to better success for underrepresented populations Good Business 2

3 Our Objective Is there still substantial bias in the corporate and legal arena? Why is there bias? How can we eliminate (or at least reduce) bias in the corporate and legal environment? Discussion: what is bias? 3

4 Bias Still Exists 4

5 Bias Still Exists 5

6 Bias Still Exists 6

7 Bias Still Exists 7

8 Bias Still Exists 8

9 Do You Need to be Tall to be a CEO? Less than 15% of American men are over 6 ft. tall 60% of corporate CEOs are over 6 ft. tall An inch of height was worth $789 per year in 2004 (Judge, Timothy A. and Cable, Daniel M., The Effect of Physical Height on Workplace Success and Income, Journal of Applied Psychology, June 2004.) 9

10 Minorities & Women Lawyers Law School Graduates: - Minorities account for 20-24% of grads - Women account for 46-49% 49% of grads Summer Associates: - Minorities account for 30% of summer associates - Women account for 46% of summer associates 10

11 Minority and Women Lawyers Associates: - Minorities account for 20% of associates - Women account for 45% of associates Partners: - Minorities account for 7% of partners - Women account for 26% of partners 11

12 Women Partner Inequity Only 15% of equity partners are women Only 20% of attorneys in firm executive leadership roles are women Only 4% of firms have a female managing partner 46% of associates are women (and receive only 40% of the bonuses) 70% of staff attorneys are women 12

13 What s Going On? USA Today 3/14/13 citing Pew Research Center study (2013): 13

14 What s Going On? Explicit Bias Implicit egotism Micro inequities Implicit bias 14

15 Blind Spot by: Mahzarin R. Banaji & Anthony G. Greenwald 15

16 Implicit Association Test (IAT) Unpleasant & African American vs. Pleasant & European 16

17 Implicit Association Test (IAT) Pleasant & African American vs. Unpleasant & European 17

18 IAT Types Native American Gender Sexuality Gender-Career Presidents Asian-AmericansAmericans Weapons Race Weight Age Arab/Muslim Skin Tone Disability Religion 18

19 IAT Screening Tool? Should we use IATs as a screening tool in making hiring decisions? To choose jurors? To choose judges? Police officers? 19

20 Other Evidence of Bias: Functional Magnetic Resonance Imaging (fmri) 20

21 Stroop Effect 21

22 Automatic Processing / Stereotypes Helps us deal with the flood of information we receive at all times (temperature, visuals, hunger, , texts, etc.) We process information through schemas to organize examples into broader categories We assign people into categories by traits (age, gender, race, role) Necessary to help us function Can be very helpful Can be hurtful / wrong 22

23 Attitude vs. Stereotypes Attitude: an association between a concept/group and a value (either positive or negative) Stereotype: an association between a concept/group and a trait Can have positive attitude and negative stereotypes and vice versa 23

24 The Lunch Date 24

25 Effects of Bias Resume Selection Interview Callbacks Shooter Bias Medical Treatment Decisions Juror Evaluation Sentencing 25

26 Resume Selection Bias affects which resumes are chosen E.g., hiring managers are 3 times less likely to bring a highly qualified Arab candidate in for an interview Typically white names receive more callbacks than typically black (Marianne Bertrand and Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, University of Chicago Graduate School of Business (2004).) ) Gender bias (Michael I. Norton et al., Casuistry and Social Category Bias, 87 J. Personality & Soc. Psychol. 817 (2004).) 26

27 Shooter Bias College student study Instructions: Shoot armed black and white men Don t shoot unarmed black and white men 27

28 Men in Black Shooting Scene 28

29 Medical Treatment Decisions Race affects treatment given. ER doctor giving plastic surgery to doctor but not others. Ageism. 29

30 Dealing With Juror Bias Have a larger jury pool to increase diversity of population Juror pledge: I pledge I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, t personal likes or dislikes, sympathies or generalizations. Jury instructions against bias: CACI

31 Sentencing Study done on sentencing of whites who had more Afro-centric ti features on a scale of 1-9 and blacks who had more Afro-Centric features on scale of 1-9. Study showed for both whites and blacks, the more African the person s s features, the more harsh the sentencing would be, all other factors being equal. 57.5% 5% of those with more Afro-Centric features were sentenced to death, versus 24.4% of those perceived as less stereotypically black. 31

32 How to Eliminate Bias? Recognize bias Consciously acknowledge differences and adopt multiculturalism approach rather than color blind strategy to ignore difference Motivation to be fair Show atypical examples Increased exposure to stereotyped groups Identify sources of stress & reduce them in decision-making Procedural changes 32

33 Procedural Changes Eliminate Ambiguity in Decision-Making Blind Selection Strategies 33

34 Riddle Father and son are in a car accident and badly injured. Father dies at scene. Boy goes to ER for emergency surgery ER surgeon says I can t operate on this boy. He is my son! How can this be? 34

35 The Questions - Have no final answers. They are designed to be open ended to stimulate thought and discussion. - There are no real experts on these matters. Each participant at this meeting has as much expertise as anyone else. Don t be intimidated. 35

36 F. Lee Bailey F. Lee Bailey was once asked how he does voir dire in a criminal case. He explained he will ask prospective jurors if they would believe a police officer s statements over those of a defendant. Any prospective juror who gave an immediate yes or no he would dismiss. 36

37 Goal of Discussion The goal of this presentation is to mull over these questions and scenarios. 37

38 What is Bias? What is Bias? Webster s New Collegiate Dictionary has the following definition: An inclination of temperament or outlook. 38

39 Question 1: You are forming a law firm and need a second lawyer. Your brother is willing to join you. Is it bias to hire him as an employee or should you open it up to all by posting an opening and letting all compete? 39

40 Question 2: You are the General Counsel of a health plan and need another lawyer in your office. You meet a lawyer at your church who has the right expertise and is a very pleasant chap. Should you hire him or advertise an opening to a wider audience? 40

41 Question 3: You have a law firm in a community that is experiencing an influx of people from Kazakhstan. You are going to hire another lawyer. Is it bias to limit applicants to those of Kazakhstan ancestry who can speak the language of the new immigrants? 41

42 Bias Still Exists 42

43 Question 4: The Judge says he is from the old school. Would it be bias if he insisted that female attorneys dress like women and wear skirts to court? 43

44 Question 5: Would it be bias if the purpose of the policy was to hold women to the same professional standards as men? (E.g., one rule was blazers below elbow due to complaints of women wearing sleeveless shirts and spaghetti straps.) Would it affect your view if the judge was concerned about the rights of defendants? 44

45 Question 6: If you have a young lawyer in your office whose dress is not appropriate or uses certain vernacular that might not be universally acceptable, are you demonstrating bias by counseling that individual? 45

46 Question 7: Is it bias to ask lawyers with a certain perspective be involved in certain kinds of cases? 46

47 Question 8: A case involves an actions against the government for benefits due a disabled veteran. Does it serve a purpose to have an attorney who is also a disabled veteran assigned to the case? Would the client feel better? Would such a lawyer bring a perspective to settlement discussion not otherwise available? Could such a lawyer be a better advocate? 47

48 Question 9: You have an opening in your in house legal staff. A candidate for the position has excellent credentials and is perfect for the position, except she has Tourette's syndrome. She had certain uncontrollable tics and sometimes says words that are annoying. Can you eliminate this candidate because you are worried this individual will be disruptive (through no fault of her own) in meetings and in face-to-face f communications with staff? 48

49 Question 10: You are recruiting a new lawyer to your firm. You are looking for a recent graduate. A lawyer who graduated d at the top of his class at Harvard Law School has interviewed. He is 3 feet 11 inches tall. One of your partners states: We cannot have someone of that size go before a jury and meeting with clients. Would you hire him? 49

50 Question 11: We all know firms will select a lawyer of a certain gender, race, or ethnic background for a jury trial. Is that bias? What if a lawyer is transvestite? (A male who wears a dress.) Can you realistically have that attorney go in front of a jury? Meet with regulators? Testify in front of a legislative committee? 50

51 Question 12: What about the important t client who asks that t the partner assigned to his/her matter be of a certain racial, ethnic, or religious background? Would you elect a lawyer in the firm to partnership because a major client wants a certain ethnicity for the partner assigned to him/her? Read: When Can a Law Firm Discriminate Among Its Own Employees to meet a Client s Request? Reflection on the ACC s Call to Action by Clare Tower Putnam, U.Pa. Journal of Labor and Employment Law, Vol. 9:3, p

52 Question 13: Government agencies often require diversity in the entities with whom they contract. Should a company adjust its hiring practices for an in-house legal department to accommodate diversity programs? 52

53 Question 14: Marge was on track to become a partner in a health law firm. She got pregnant in 2010 and left on maternity leave just before the ACA passed. Her child is ready for preschool in 2013 and she is ready to return. She will return a week before the partnership vote. She wants to be a partner. She does not know much about the ACA. Is it bias to pass over her and see if she can come up to speed on the ACA before considering her for partner? 53

54 CONTACT Alan Bloom Vice President of Legal and Regulatory Services, General Counsel Care1st Health Plan 601 Potrero Grande Drive Monterey Park, CA T: F: Karen R. Palmersheim Partner Locke Lord LLP 300 S. Grand Avenue, Suite 2600 Los Angeles, CA T: F: