16 February 2020
By Catia Malaquias
We are familiar with the concept of prejudice against people based on some characteristic or difference – for example gender (sexism), race (racism), age (ageism) or disability (ableism).
We recognise how someone who is open or deliberate in their prejudice can be damaging if their prejudiced views are allowed to impact upon their decision-making affecting people in the relevant group. A bus driver who is racist against people of colour may decide not stop to collect a person of colour, or if ageist may refuse to give adequate time for an older person to board the bus. This is conscious or deliberate prejudice – the driver is aware of their prejudice and acting consistently with and giving effect to that prejudice.
Most people are not conscious of their prejudice towards others – or like to think they have no prejudice – that they are fair in treating everyone equally or in making appropriate allowances.
But all of us – everyone one of us – have unconscious or implicit prejudice or bias towards people with difference. That is, a bias, to some degree, for or against a particular characteristic or difference that arises not from deliberate thought processes – but from our automatic or unconscious prejudice that has accrued from our individual life experience – from our interactions with family, friends, schooling, workplaces, community and which is supplemented by our exposure to the media. Unconscious or implicit bias is reinforced by structural and historical factors and develops at a very young age. It is not countered by “intellectual” prowess – and sometimes intellectual elitism actually fosters overt and implicit bias, for example against people with intellectual disability or poor education. There is a reason why the eugenics movement in the early 1900s found its most strident supporters in the intellectual professions of law and medicine.
Over the last 20 years there has been increasing recognition that unconscious or implicit bias is much more pervasive and more insidious in its effect than overt prejudice – which is more easily identified and countered. Many organisations, particularly in the United States, have implemented implicit bias training – initially to counter racism against African-Americans and Hispanic Americans and sexism in the workplace, but increasingly and more recently to address ageism and ableism. Research suggests that only the area of ageism demonstrates stronger implicit bias than ableism.
Certain professions whose decision-making directly affects minorities – particularly medical professionals in relation to health care and the legal profession in relation to justice – are being identified as key professions for implicit bias training.
California recently became the first US state to legislate implicit bias training (including in relation to disability) as mandatory for all lawyers, court officers, doctors and nurses on a biannual basis – the legislation cannot apply to judges, however the Californian Chief Justice has indicated that implicit bias training will be made available to all judges.
Also recently, as a national first, the Law Society of Australia, together with diversity and inclusion specialists, Symmetra, developed an implicit bias training program for lawyers, to assist interactive exploration of implicit bias and how to counteract different types of bias.
Lawyers are recognised as uniquely challenging for anti-implicit bias training. Implicit bias trainers with 20 years experience in the US gave a number of reasons:
- Lawyers are highly intellectual and deliberate decision-makers – they are less amenable to the impact of any unconscious bias;
- Lawyers, as ‘champions of justice’, regard themselves as the most ethical of decision-makers and many regard suggestions of implicit bias as a personal attack on their ethics.
- Lawyers require more ‘evidence’ of the implications of their implicit bias – they reason from a base of hard facts.
- Many lawyers are ‘status conscious’ and need to be persuaded of ‘implicit bias’ by a fellow lawyer.
In a recent study, it was found implicit bias against people with disability increased with a person’s age (i.e they had less favourable feelings towards people with disability over time) and that as disability is a particularly sensitive and uncomfortable topic for many, few are willing to acknowledge their own capacity for implicit bias – in fact, with age people were more likely to mask their implicit bias by outwardly portraying more positive opinions about people with disability. The study also found that generally women, being more accepting of minorities, demonstrated less implicit bias towards disability and, as expected, that higher exposure to people with disability reduced implicit bias.
In recent years the Australian Government has initiated a number of high profile inquiries into social, educational and economic injustice relating to people with disability, including the 2016 Senate inquiry into the educational attainment of students with disability, the 2019 Senate inquiry into Autism and the current Disability Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
The general conduct of these Governmental inquiries, including the identification of witnesses, the assessment of evidence and submissions and the formulation of reports and recommendations, are and will be inevitably affected by implicit bias of Committee and Commission members, supporting policy staff and assisting lawyers. There is probably no more acute need for quality, penetrative and sustained implicit bias training than in the context of such inquiries critical to the realisation of the human rights of people with disability, including importantly to maintain the confidence of the disability community in the integrity of the relevant inquiry.