Work was quiet on a particular summer afternoon way back when, when I was an associate in a big law firm, and casual conversation between a partner and me turned to baseball. I was older than many of the firm’s associates, since I had worked for several years after college and had attended graduate school before becoming an attorney, so I was the same age as many of the firm’s partners, whom I considered personal friends. This particular partner was no different, and we shared at least two important things in common – sons of roughly the same age, and a love of baseball. We spoke of teaching our boys how to pitch and catch, and of taking them to Major League games. He and I had grown up in different regions of the country – he in the North, and I in the South, and we compared memories of the game from childhood. We had held such conversations before. Reminiscing about our shared experiences had deepened our friendship.

It might seem ironic, therefore, when on that summer afternoon he teased me by asking whether, when we Southern boys wore baseball uniforms, we were also required to wear white hoods with pointed tops (a clear reference to the hoods of the KKK). He chuckled when he asked it. How cruel such a question would have seemed to an outsider to the relationship. How offensive. Was he suggesting that all Southern boys (or at least all Southern baseball-playing boys) were raised to be racists like the KKK? Was he sincerely asking whether I, his friend, had been raised that way? Did he not know me better than that?

But he wasn’t being serious, not entirely. I understood at the time that his primary intent was merely to tease me, his friend, as if to say “I know that YOU don’t fit this stereotype about the South.” He was saying one thing, communicating another. After all, by that time he had already known me for years, so he knew about my past before I became a lawyer, when I had been a church-staffer in Alabama who had focused precisely on issues of racial reconciliation. He also knew that I had become an attorney precisely because of my passionate support for civil rights. In reality, of course, he was communicating several things. First he was acknowledging the existence of a certain negative stereotype about Southerners (i.e., the idea that more Southerners harbor racist views than non-Southerners), and his question implied that the stereotype was among the first things to come to mind when discussion about baseball turned to discussion about baseball in the South. Second, he was acknowledging, albeit in ironic fashion, that I was not the caricature that the stereotype might suggest. Somehow he had been taught to associate an identity like mine with the negative stereotype, but his teasing revealed his discovery – as always seems to happen when real people take the time to become friends – that flesh-and-blood people are never equivalent to stereotypes.

The conversation with my friend was a missed opportunity that day. Stunned by his question, I awkwardly laughed it off, just as he did. Perhaps I didn’t think it was appropriate to chastise him – as a partner in the law firm he was, after all, my boss. Since I didn’t take that moment as an opportunity to engage in an honest conversation about the stereotype, I’ll never know if our friendship had persuaded him to discard the stereotype, or whether he really wanted to ask me questions and learn more about a part of American culture that seemed foreign to him. But I have had years to reflect on that conversation, and my response would be different today. In this article I’ll explain why. ¹

This is the third article in a series of articles about having healthy workplace discussions regarding diversity. In my first article, I talked about the deeper reasons why so many of us lawyers are drawn to practicing law, including desires to be part of a noble profession that is ultimately designed to secure and maintain equality and dignity for all persons. I acknowledged that, based on recent data ² , it’s unfortunately clear that many of our neighbors and co-workers still don’t value diversity, and that those of us who do value diversity are therefore called to find ways to foster healthy conversations about its importance for our organizations. In the second article, I urged readers to think about the key reasons we support diversity and inclusion in our organizations, beyond mere legal compliance obligations. In that discussion, I argued that currently available data demonstrate that diverse organizations are more successful, in large part because the incorporation of diverse perspectives within organizational operations and management contributes to innovative thinking. In this article I’d like to consider the unconscious biases within our organizations, a reality that persists despite our best policies and practices, because some biases, it turns out, are simply part of the brain’s wiring. Let’s talk about unconscious bias.

When I speak of “unconscious bias,” I am referring to associations we make in our minds, without active thought, between various people groups, on the one hand, and either positive or negative attributes and value judgments, on the other hand. Throughout our entire lives, each of us is bombarded with data that suggest such associations. Fashion advertisements, for example, routinely depict skinny models in association with beauty, until, for some people, the very ideal of human beauty is associated with skinniness. Societal messaging includes implied biases regarding gender, LGBTQ status, age, physical fitness, physical beauty, educational achievement, wealth, race, national origin and many other categories – including, like my partner-friend demonstrated on that summer day, regional origin. Are wealthy people smarter or harder-working? Implied societal messaging might suggest so. Are men or women better suited for certain careers? Implied societal messaging would suggest so. Are Southerners more biased than Northerners? Well, my friend and former colleague implied that same question. Society inundates the brain with a million messages of implied associations each day, and our unconscious minds unavoidably take note. Unconscious bias, as I’ve described it, is also sometimes called “implicit bias.” More recently, a leading research study related to this topic has elected to use the term “implicit associations.” ³

It is vitally important that we educate our organizations about unconscious bias, because it is real, it is ubiquitous, and it is addressable. Left unaddressed, however, our organizations risk suboptimal decision-making that undermines performance and that harms real people. Yet more than almost any topic related to diversity and inclusion, I find resistance from colleagues to discussions about unconscious bias. The resistance comes in many forms, but over time and over the course of scores of such conversations, there are a few suggestions I can make to encourage healthy discussions about unconscious bias. What follows are just some starting points for those discussions.

Healthy workplace discussions ought to start by assuring our colleagues that acknowledging unconscious bias is not the same thing as accusing any individual of moral failure .

To evaluate any ethical course of action, it is necessary to include some concept of agency. An act or omission is either ethical or unethical, right or wrong, based in part on whether the individual elected the course of action. For example, consider the newsstand vendor who owes the customer $4 in change, but gives the customer $3 instead. Did the vendor intentionally cheat the customer by returning less change than owed? Or did the vendor simply get distracted and miscount the change? The intentional theft would clearly be unethical and wrong. The miscounting, however, is an accident and, while harmful to the customer, would not ordinarily be considered morally blameworthy on the vendor’s part. Intent and agency matter for ethical assessments.

Unlike behavior based on conscious stereotypes, however, unconscious bias is not intentional. It is truly a kind of prejudice insofar as it represents assumptions made about persons even before any act of conscious judgment occurs – it is a “pre-judgment.” We often use the word “prejudice” to describe active, deliberate judgments (positive or negative) made about a person based on generalizations regarding the group to which the person belongs, without ever actually assessing the individual. Where such generalizations and judgments are indeed consciously made, there surely is room for ethical evaluation and potentially also for ethical criticism. But when speaking of unconscious bias, we are describing a bias arising without deliberation or choice, an inevitable reality about the human brain, not an accusation that anyone has actively chosen to adopt or accept any particular implied association. I find that colleagues are far less resistant to discussions of unconscious bias when they understand that we are describing a general psychological phenomenon, not pointing fingers.

It is equally vital that we demonstrate that unconscious bias is real and ubiquitous. When I hold discussions about unconscious bias among groups of colleagues, invariably one or more group members will express skepticism about the very existence of such biases. And like clockwork, someone can also be expected to assert that, even if it exists among others, he or she does not personally harbor any biases, neither unconscious nor any other kind. They are all wrong. For that reason, there simply is no substitute for providing an opportunity for our colleagues to participate in one of the several freely available online tests or demonstrations.

While there are many tests for unconscious bias, I would recommend any of the battery of tests available through Harvard’s Project Implicit ⁴ , because they are easily accessible, cost free, quick, anonymous and persuasive. For most of the tests, the taker is asked to choose words from a list that indicate positive or negative attitudes toward various topics, such as weight, sexuality, gender or race. The tests demonstrate how much more easily our brains associate “good” or “positive” attitudes with certain preferred groups of people, and conversely how difficult it is for our brains to associate the same positive attitudes with disfavored groups – EVEN IF we have no conscious preference for one group over another.

For example, as an overweight middle-aged lawyer, I was curious what Harvard’s “Implicit Association Test” (or “IAT”) would tell me about my own unconscious attitudes toward weight. I recently took the test and found that, despite my clear conscious conviction that weight indicates nothing whatsoever about a person’s intelligence, work ethic, personality or inherent worth, the test indicates I have a strong unconscious preference for thinness. To be clear, I don’t endorse anti-fat biases, nor consciously hold bias against overweight persons, but the IAT suggests my brain has been taught the notion that, in our society, negativity is often associated with being overweight – not welcome news for an overweight guy like me. Those data points are in my brain’s database, and my life experiences put them there without my consent or awareness. Among Harvard’s many other findings, the IAT demonstrates that most persons, regardless of gender, hold biases that associate femaleness with liberal arts and family, and that associate maleness with science and careers. ⁵ It also reports that most Americans, regardless of race, hold “an automatic preference for white over black.” ⁶

It may be surprising to some to discover that the unconscious associations demonstrated by the IAT are consistent across the spectrum of test takers. Why, for example, would the brains of African American test takers unconsciously hold preferences for whiteness over blackness? Similarly, why would older test takers share younger test takers’ “automatic preference for young over old”? The answer lies in the very nature of unconscious biases: Because these biases are the cumulative effect of a lifetime of implicit societal messaging, the data that form the prevailing background noise of society are data shared by everyone, regardless of race, gender, age or any other attributes.

It is enlightening and humbling to take the IAT and learn something new about the wiring of one’s own brain, especially when the unconscious biases revealed by the test are so contrary to what one believes. It can be quite upsetting to a group of white colleagues, for example, when they are told that, despite their deeply held beliefs about the equal dignity and value of all persons, and despite their commitment to respect all persons regardless of race, their brains show evidence of unconscious racial biases. They sometimes resist the test evidence, because it feels a bit like being called “racist,” but as I’ve said above, the presence of unconscious associations is merely an automated accumulation of societal messaging by the brain – not the same thing as the conscious agency required for an accusation of immorality. In a similar way, the IAT test results can be unsettling to a group of male colleagues when they learn that, despite their sincerest efforts to promote gender equality in the workplace, the test reveals their unconscious gender bias. It’s upsetting and unsettling because good, ethical people reject prejudice and even fight actively against it, yet science teaches us that good, ethical people all exhibit the same potential to soak up the messages implied by society about various groups of people. As it turns out, all people have the very same ability to internalize the background noise – all unconsciously.

Because this discussion can be so distressing at times, it is all the more important that we demonstrate the universality of the phenomenon. Those who discover unconscious biases within themselves mustn’t be allowed to reach the mistaken conclusion that they are broken, and that others are not. In reality, we must conceive the reality of unconscious bias either as a kind of universal brokenness that is present in everyone (i.e., a concept embraced by the world’s great religions), or we must learn to describe it without value judgment: it’s just science. Either way, we accomplish far more by including diverse persons in our discussions about unconscious bias, and by ensuring that diverse persons take the same tests, like the IAT, because doing so reveals that all persons hold the capacity for unconscious biases in common. To date, I have never met any person in whom the IAT did not reveal some kind of previously unknown, unconscious bias. It is important that we acknowledge this universality.

It is absolutely critical, however, that this recognition of universal, unconscious bias must not lead to resignation or discouragement. Encouraging our colleagues to acknowledge the existence and ubiquity of unconscious bias is just the first step in our healthy workplace discussions. While we should assure our colleagues that asserting the presence of unconscious bias is not a moral accusation against anyone, and that acknowledging one’s own unconscious bias is not the same as confessing a moral failing, we should also point out this reality: Once we are educated about the phenomenon of unconscious bias, the ethics calculus changes. Doing nothing about unconscious bias would be a choice, an act of our moral agency, and therefore any decision to do nothing about the issue would be problematic. Possessing unconscious biases is not a moral failing; ignoring them, once we’re aware of them, is.

Imagine our hypothetical newsstand vendor, who mistakenly miscounted his dollar bills and short-changed his customer by one dollar. If he discovers his error before his customer walks away, would it be acceptable for the vendor to keep the extra dollar, or should he stop the customer, explain the mistake, and return to the customer what was rightfully owed? Like the newsstand vendor, once we learn about our biases, surely we ought to take steps to overcome them, or at least to keep them in check. Choosing to do nothing is the act that would count as an ethical failure, whether for the newsstand vendor or for any of us in the workplace.

I do appreciate that coworkers may be reluctant to use the language of ethics and morality when conducting workplace conversations about difficult topics. Doing so can sound preachy, as if we are proselytizing our colleagues regarding a religion of political correctness. We should remember, however, that this discussion is fundamentally about managing and operating our organizations so that they achieve the highest potential (while, of course, also meeting compliance obligations). To achieve their potential, our organizations must cultivate and value respect for the equal dignity of all persons. If we can’t get on the same page about that value, do any of us really want to be part of such organizations? Do any of us really want to do business with those organizations? To emphasize the point once again, the data show that diversity yields higher performing organizations. Do we not have duties, ethical and otherwise, to help our organizations achieve optimal performance? Far from proselytizing, teaching our colleagues about the ethical imperative to address unconscious bias is both common sense and good management, plain and simple.

Lest the nature of the ethical failing be unclear, let’s describe it in one or two ways. First, imagine a circumstance where two persons of equal qualifications apply for a job, one man and one woman. On the basis of unconscious biases, the man is awarded the job. Are we to view the situation as any less unjust than a situation where the biases were conscious? Whereas the persons making the hiring decision may have acted without awareness of their biases, and therefore may not be subject to the same ethical critique, the harm to the woman candidate is just the same, and the hiring decision, rooted in bias, is certainly unfair to her. Unconscious biases cause unnecessary harm to real people. With that knowledge in hand, any decision not to address such biases is a choice to turn a blind eye to unnecessary, avoidable harms. Furthermore, failure to address unconscious basis is to surrender our own organization’s future to the uncertainty caused by unconscious biases. How confident are we that we are selecting, promoting and supporting the very best personnel for our organization’s benefit unless we have done everything in our power to minimize the impact of our own unconscious biases on our own operations and management?

How, then, shall we respond to the unconscious bias we witness everywhere, and how can we foster healthy discussions about our organizational strategy to address it? Let me offer just five quick suggestions:

1. Talk, and then talk more. First, we really must talk about these issues with our colleagues. Out loud and with intentionality. Until we educate our colleagues about the presence and ubiquity of unconscious bias, they may be less supportive of the other steps outlined below. Once persuaded that unconscious bias exists, that it is universal, that it hurts real people, and that it potentially robs our organizations of performance-enhancing diversity, our conversations will have far more success persuading colleagues that we should avoid unnecessary harm and that we owe our organizations every opportunity to achieve its maximum potential. And, of course, persons who have become aware of their own unconscious biases are better equipped and more likely motivated to overcome them. Hopefully this article provides some ideas about starting such conversations, but resources abound online if you need them. A quick Web search for “unconscious bias resources” or “unconscious bias tests” will point you to many helpful websites.

2. Provide Diverse Interactions. It is far easier to rely upon biases when one’s life experience presents little counter-evidence to unexamined stereotypes. Unconscious biases are based on a lifetime of passively absorbing implied societal messages, but we can always provide alternative data – the kind of data learned from relationships with persons unlike ourselves. How many, many times have I witnessed friends and family members overcome prior assumptions by exposure to healthy interactions with real people who broke some stereotype? I like to believe that my old friend at the law firm was unable to continue holding his assumptions about Southerners because our friendship provided counter-evidence. In our organizations, perhaps we can provide opportunities to know our co-workers through chili cook-offs, community food drives, charity 5Ks, holiday parties and company retreats. All activities like these provide opportunities for coworkers to interact as human beings, not merely as colleagues, and doing so can chip away at stereotypes, yielding better interactions and, ultimately, better operations and management back at the office.

3. Implement Institutional Checks. Our organizations can institute processes that act as checks on unexamined decisions. My firm, for example, has elected to participate in a program called the Mansfield Rule, which requires us to ensure that candidate pools for hiring and promotions include at least 30% diverse candidates. The program doesn’t create quotas, nor does it guarantee that a given portion of our new hires or promotions will be comprised of diverse attorneys, but it does force us to be intentional about our efforts to promote diversity. By making a commitment to the program, we don’t allow ourselves to go on autopilot – we are constantly reminded to think about the inclusion of diverse personnel in our operations and management. Other organizational measures may include a) regular measurement of internal diversity stats and internal publication of the same, b) establishment of mentoring programs that pair younger diverse attorneys with champions from among the senior ranks, c) solicitation of candid, anonymous feedback from diverse personnel regarding their experience at the firm, and d) periodic educational programs that, in addition to supporting compliance requirements, also report current data regarding the benefits of diversity for organizational performance and the bottom line.

4. Consult Diversity. Perhaps the strongest measure any organization can take to combat our unconscious biases is the inclusion of diverse perspectives within its decision-making about diversity. For example, when hiring or promoting candidates, are diverse colleagues’ perspectives taken into account? As my prior article articulated, organizational decisions, even decisions regarding diversity and inclusion, can benefit from the innovative thinking sparked by diverse, inclusive collaboration.

5. Make the long-term commitment. Unconscious biases are a consequence of the brain’s automated tendency to notice the implicit associations communicated by ever-present societal messaging. If we don’t become aware of those implicit associations, and if we don’t question their validity, we sometimes rely on them unconsciously, resulting in biased organizational operations. This phenomenon isn’t going away. If we do not wish to be ruled by such biases, and if instead we wish to help our organizations achieve their best by preventing unconscious biases from undermining diversity and inclusion, we will need to understand that healthy workplace conversations about this topic must be a permanent feature of sound organizational management. As this series of articles underscores, I encourage readers to adopt a long-term view about the commitment required to address the problem.

Nowadays when I think back to that conversation about baseball long ago, I only wish I had been better prepared to engage in the conversation that my old friend invited. His lifetime of experience had allowed him to accumulate assumptions associated with a particular identity (that I embodied), and I was the counter-narrative to his previously unexamined assumptions. A relationship of trust, like that between colleagues who are friends, is perhaps the very best context for healthy conversations about difficult topics. Diversity and inclusion are tough topics, especially when unconscious bias is a new and potentially upsetting concept to our conversation partners. For those of us who care about the value of diversity and inclusion, however, these are necessary discussions to pursue, and I hope this article will provide some ideas about where to start.

Afterword:

Prior to my fourth installment in this article series, I will be moderating two events in the Greater D.C. area to explore these topics further. In the first event, C-level executives will be invited to share war stories and lessons from their own experiences about the value of diversity to their organizations’ performance. In the latter event, members of the National Capital Region of the Association of Corporate Counsel will gather to consider lessons that the tech industry can teach lawyers about diversity. The U.S. tech industry, where my own legal practice lives and breathes, has benefitted spectacularly from the inclusion of diverse entrepreneurs from all around the globe, yet it continues to falter by some diversity metrics (e.g., fewer women in senior leadership). As the next and final installment of this article series, I’ll be recapping the insights gleaned from these upcoming events. I hope you will join (and continue) the conversation.

¹ To be abundantly clear, I also have no intent to describe myself as a victim of unconscious bias, at least not a victim in any damaging way. I use this anecdote from my personal experience, where I just happened to be on the receiving end of a friend’s teasing, only to illustrate that stereotypes are virtually everywhere, as are our opportunities to talk about them and grow past the negative kind. It also illustrates how easily we miss those opportunities. I am also aware, of course, that my race (white) and gender (male) have been accompanied by all kinds of unearned privilege in American society. Thankfully, one of those privileges is the power to encourage healthy public discussions about unconscious biases, without fear of reprisal in my own workplace.

² See “Americans See Advantages and Challenges in Country’s Growing Racial and Ethnic Diversity," May 8, 2019.

³ See Harvard’s “Project Implicit” at implicit.harvard.edu. Unconscious bias might also be used sometimes as an umbrella term for a broader category of biases, including, e.g., confirmation bias and inattentional blindness. As I use the term in this article, it relates only the narrower category described by Harvard’s Project Implicit as “implicit associations.”

⁴ Id.

⁵ https://implicit.harvard.edu/implicit/selectatest.html

⁶ Id.