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Do Lawyers Need Implicit Bias Training?

By Casey C. Sullivan, Esq. | Last updated on

Black children are regularly viewed as older and more suspicious than they are, leading to harsher treatment at the hands of authority figures. When imaging powerful figures, women rarely come to mind as often as men. Yet, pretty much everyone this side of Archie Bunker believes such biases are wrong. So why do they persist?

One of the answers is implicit bias, the subtle, often-unconscious associations connected to race, gender, and age that reinforce discriminatory stereotypes, often without our being aware of them. To counteract implicit bias, the Department of Justice recently announced that all of its law enforcement agents and prosecutors would receive training on unconscious bias. Should the rest of the legal profession follow?

Implicit Bias Matters

If your racist uncle's drunken comments are the tip of the bias iceberg, implicit bias is everything hidden under the water. They're the subconscious associations that shape our actions and reactions in the blink of an eye. They can make us less sympathetic to minority clients, more critical of younger or older colleagues, or less willing to accept women in positions of power -- even if our conscious mind knows better than to believe the stereotypes implicit biases are based on.

Those biases "present unique challenges to effective law enforcement," Deputy Attorney general Sally Yates said in a memo to DOJ employees. That's because unconscious bias "can alter where investigators and prosecutors look for evidence and how they analyze it without their awareness or ability to compensate."

Don't think implicit bias applies to you? You might be right! Go ahead and test it out. Thanks to researchers at Harvard, anyone with a computer and internet connection can see if unstated biases affect them. The Implicit Association Test asks you to pair two concepts, like women with leadership roles and men with homemaking duties. Then it reverses the pairing. If you have more ease with one match than the other, that could be implicit bias playing out.

Give it a try; you might be surprised at the results.

Implicit Bias Training Is Becoming More Common

The DOJ's implicit bias training seeks to "to promote fairness, eliminate bias and build the stronger, safer, more just society that all Americans deserve." And the mandate is wide-reaching. More than 28,000 DOJ employees will be affected, including 5,800 federal prosecutors and 23,000 federal agents.

But the DOJ isn't breaking new ground here. Many local law enforcement agencies have also been mandating implicit bias training, Reuters reports. Police departments from Baltimore to New York and Seattle to New Orleans have instituted trainings to help officers recognize bias, often following outcry over police brutality.

Should lawyers follow the lead of the DOJ and local PDs? Of course. As ABA President Paulette Brown wrote in response to the DOJ announcement, "When unconscious biases impact the fairness and equality of our criminal justice system, complacency is not an option."

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