By Dr. Ken Broda-Bahm:
O.J. Simpson became “more Black” after becoming a suspect in the murder of his ex-wife, and not just on Time Magazine’s infamous tinted cover photo. He also became “more Black” in the sense that the context of criminal charges made his race more saliant to most Americans. We have a tendency to think of people as either racist or not racist. The more thoughtful among us might see degrees of racism instead of that absolute distinction. But it is still thought of as a quality that inheres in the person. New research, however, is expanding our view of what racism means, and making a case for the conclusion that racism stems as much from the situation as it does from the person. In addition to tools like the Implicit Associations Test showing that most of us have subtle yet deeply ingrained racial preferences, there is also a growing body of research on priming — showing that contextual cues can elicit responses that favor one race over another.
One recent example of research looking at this priming effect (Krosch & Amodio, 2014) examined the power of scarcity in eliciting racist behavior. Instead of just measuring who is and isn’t racist, they instead demonstrated that a manipulation to the situation — introducing or priming the idea of scarcity — is sufficient to bring about a change in our perceptions and actions. “Across four studies,” they write, “scarce conditions led perceivers to view Black people as ‘darker’ and ‘more stereotypically Black’ in appearance relative to control conditions, and this shift in perception under scarcity was sufficient to elicit reduced resource allocations to African-American recipients.” The implication in court, as well as in law firms, is that instead of just worrying about “the racists,” we should also be worrying about situationally primed racism as well.
The Relativity of Racism
Those who say racism is rare, marginalized, or a thing of the past, have in mind the stereotype of the explicit bigot: Think Donald Sterling on a private telephone line. The reality of racist attitudes and behavior is much more complicated than that. The study (Krosch & Amodio, 2014) from NYU psychologists showed that it is not only subtle, but also easily manipulated.
In the first and second studies, the researchers prepared the mostly-White study participants in ways that placed the idea of economic scarcity and competition into their minds (e.g., with questionnaire items like “When Blacks make economic gains, Whites lose out economically” in the first study, or briefly presented on-screen words like “scarce” in the second study). Then, the participants took part in a race identification task, being presented with a series of random faces like the ones depicted in the image at the top of this post. The images are manipulated to morph from “100 percent White” to “100 percent Black” with gradations of 10 percent in between. The researchers measured the point at which a given face would have an equal chance of being considered “White” or “Black.” The effect of priming on the theme of economic scarcity was to lower the threshold for seeing a mixed-race face as Black. In other words, once infected with the thought of scarcity, participants had an easier time in seeing an ambiguous face as “Black.”
In the third and fourth studies, the authors created experimental conditions of perceived scarcity (making participants believe they had only received $10 to allocate with a research partner out of a possible total of $100). That manipulation, the researchers found, caused participants to visualize African-American faces as darker and more “stereotypically Black.” When asked to split a sum of $15 in whole dollar increments, they also allocated less to a research partner who was Black.
The authors connect this research to the disparities minorities face in a recession. For example, in America’s last one, Whites saw their income decline by 16 percent, while for Blacks it was an astonishing 53 percent. The theory is that scarcity activates racism for the most evolutionarily basic of reasons: When times are tough, we want to protect “our own” and shun “others.” That is not often a conscious reaction, but it can still be a powerful one.
Scarcity and Racism in Litigation and the Law
When racism is discussed in a legal context, the focus is usually on the race of the criminal defendant. In these criminal contexts, the whole judicial apparatus can be viewed as a prime, inducing a focus on the perceived criminality of Blacks. Racial priming, however, can carry other impacts for African-Americans in law. Here are two.
…On the Trial Team
The concept of scarcity applies to more than just money. In many areas of litigation, trial opportunities are getting scarce. When a seat at the trial table becomes a relatively rare attraction, those opportunities will most often fall to the oldest and most senior litigators — bad news for younger associates, but also bad news for African-Americans who have been dramatically underrepresented among litigators.
That is a structural barrier. But if it is true that scarcity invites racism, then Black litigators might face that unconscious hurdle as well. In trial, there is also the possibility of a kind of “second-order” racism among teams or clients who could feel, “I’m not racist…but I worry about the jurors who are.”
The solution to less conscious barriers like these is a conscious choice: Diversify your trial teams. The in-house attorneys who are insisting on more diverse trial teams are right. Not only are minorities who succeed in majority-dominated fields often very adept in communications (due to their code-switching abilities), but there is also evidence that more diverse groups make better decisions because they make fewer common assumptions.
…In the Law Office
The current issue of The American Lawyer focuses on diversity in the legal profession — and more specifically, the dramatic and persistent lack of it. Today, decades into the quest for diversity within law firms, African-Americans make up just 1.9 percent of partners at Am Law 100 firms. And that number hasn’t improved in five years.
The question of why law has fared worse than other fields (like finance, business, and academics) features prominently in Viva Chen’s Careerist column in the same issue entitled, “Time to Call It Racism?” (and I wonder if that question mark at the end is a compromise with the editor). To Chen, the real problem is not a lack of good intentions, but is instead found in a kind of “cult of cerebralism” that subtly primes law firm leaders toward stereotypes about minorities. The culture is “preaching that only the brightest and most tenacious will win the prize,” Chen writes, and “to some members of the establishment, minorities don’t quite fit the bill.”
The power of this unconscious bias has in fact been borne out in a recent study (Nextions, 2014). Researchers asked 60 partners at 22 firms to rate the same research memo written by, they were told, a third-year associate portrayed as either African-American or Caucasian. The partners gave the Caucasian associate an average score of 4.1 out of 5. But the same memo attributed to an African-American averaged only 3.2.
Again, the solution to unconscious bias can be found in conscious choices. Lawyers at every level of a firm’s culture need to interrogate their assumptions. As Chen concludes, “Firms can go through the motions of diversity – host cocktail parties for Black law students, assign mentors to Black associates or hire fancy diversity experts — but unless they’re convinced that African-Americans can make it, those efforts are largely a waste of time.”
The legal profession represents America in the boardroom and before the bar. So here’s to steps that will help that profession come to look more like America in the years ahead.
Other Posts on Race:
- Hire Code-Switchers
- Address Bias at its Roots
- Dissociate (to Separate Bad Image from Good Image in Litigation)
Krosch, A. R., & Amodio, D. M. (2014). Economic scarcity alters the perception of race. Proceedings of the National Academy of Sciences, 201404448.
Image Credit: Krosch/NYU/PNAS – Composite created by Nick Bouck, Persuasion Strategies