New Jersey Employment Attorneys Blog
One cannot fix what is not recognized to exist, nor fix
which is not understood to be broken.
Assimilation for Black Americans is near impossible. Skin color cannot be escaped and keeping quiet does not hide racial identity. The blackness of an African American’s skin makes their basic human and constitutional right to be treated with equanimity and fairness dependent on how white Americans choose to treat them, consciously or unconsciously.
While conscious or intentional mistreatment of blacks is often reserved for those relatively small number of silent bigots or avowed racists, it is the insidious existence of unrecognized, unconscious or implicit racial bias in America which has and continues to systematically threaten and undermine race relations today. One cannot possibly fix what is not recognized to exist, nor fix that which is not understood to be broken. To rid our government, courts, juries, police, schools, private businesses, social centers, and ourselves, of unconscious racial bias, policies and programs must be implemented in our grade schools on up to teach how to recognize unconscious racial bias and to provide the tools necessary to limit its effect.
Centuries of Conscious Racism Baked Racial Prejudice into Our Country’s Unconscious Mind
The Legal Sanctioning of Racial Discrimination
Any discussion of unconscious/unintentional bias in our society must start by examining its root cause – our nation’s legacy of conscious/intentional discrimination towards Black Americans. When the United States Constitution was ratified on September 17, 1787, it made no express reference to slavery. However, it contained the odious Fugitive Slave Clause under Article IV, Section 2, Clause 3, requiring a “person held to service or labor” who flees to another state to be returned to his or her master in the state from which that person escaped. Later, the Fugitive Slave Act of 1850 strengthened provisions for the recapture of slaves and offered them no protection in the justice system.
In 1856, the Supreme Court of the United States enforced the fugitive slave laws when it issued the racially repugnant Dred Scott v. Sandford decision. Authored by Chief Justice Roger Taney, a former slave owner, the Court concluded that black people, “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
Some three decades later in a ruling essentially legalizing discrimination against Black Americans, the Supreme Court held in the Civil Rights Cases, 109 U.S. 3 (1883), that the 13th and 14th Amendments did not empower Congress to outlaw racial discrimination by private individuals. This was followed by Plessy v. Ferguson, an 1896 Supreme Court decision upholding the constitutionality of racial segregation under the “separate but equal” doctrine. After Plessy came the Court’s decision in Cumming v. Richmond (1899) where three black families in Richmond County, Virginia, faced the closing of the area’s only public black high school. The parents of the children petitioned to allow their children to finish their education at a white high school instead. The Supreme Court chose to ignore its own “separate but equal” doctrine and instead found that if there was no suitable black school in a given district, black students would simply have to do without an education. These Supreme Court decisions would remain the law of our land for more than two generations until the landmark decision in Brown v. Topeka Board of Education (1954) declared racial segregation of black children in public schools illegal.
History of Police Brutality Toward Blacks
The Great Migration (1916–70) of Black Americans from the rural South into urban areas of the North and West was spurred on by Jim Crow’s de facto subjugation of Black Americans.[1] Until then, most white communities and their white police departments were unaccustomed to the presence of black neighbors and reacted to their increasing numbers with fear and hostility fueled by racist tropes and stereotyping. In turn, northern police departments treated black males based on the presumption that they had an inherent tendency toward criminality requiring constant surveillance and restrictions.[2] Accordingly, by the mid-1950s many urban police departments had implicitly conceived their new mission was to police African Americans in order to protect whites.[3]
From the 1960s, police brutality sparked many of the race riots that took place in urban America, including the Watts Riots of 1965, and the Detroit and Newark Riots of 1967.[4] In 1980 the Liberty City section of Miami erupted over the police killing of an unarmed black man. During a period of three days, 18 people were killed and some 1,000 arrested, and more than $100 million in property damage was committed.[5] Twelve years later the beating of Rodney King by Los Angeles police officers and their subsequent acquittal on charges of assault with a deadly weapon and excessive use of force triggered the Los Angeles Riots of 1992, which lasted six days where more than 50 people were killed, more than 2,300 were injured, and property damage estimated at about $1 billion.[6]
In 2014 the fatal shooting of an unarmed African American teenager named Michael Brown, by a white police officer in Ferguson, Missouri, and a grand jury’s subsequent decision not to indict the officer on criminal charges provoked rioting in that city. Protests again ensued after the 2014 suffocation death of Eric Garner while Mr. Garner was in the custody of the New York City Police Department. Later in 2015 rioting and peaceful demonstrations followed the death in police custody of Freddie Gray in Baltimore, Maryland.
Centuries of racial bigotry and its ingraining into the American DNA created fertile ground for George Floyd’s murder on May 26, 2020 by a white Minneapolis Police Officer named Derek Chauvin; a tortured death of nearly 9 minutes long later witnessed on videotape by the whole world. The videotaped killing of Mr. Floyd led to ongoing streets protests throughout the United States and foreign countries. It continues to serve as the impetus of numerous legislative proposals intended to combat police misconduct, systemic racism, and police brutality throughout the United States. It is urged for nationwide education and training on the subject of unconscious bias to be included in the reforms being considered as part of the national reckoning on race and prejudice spurred by Mr. Floyd’s murder.
The Existence of Unconscious Bias
Conscious vs. Unconscious Bias
Individuals are aware of their conscious or explicit biases.[7] In contrast, an implicit or unconscious bias is an unconscious association belief or attitude a person has toward one or more social groups. Such unconscious biases lead to stereotyping groups of people on their sex, color, national origin, disability, religion, sexual orientation, among other groupings, based on assumed characteristics. It occurs when people unconsciously paint every individual who fit into these groups with the same broad brush and fail to look at each person as a unique individual.
Eliminating Unconscious Bias
Research has shown “that while it may be difficult to eliminate our biases, we may be able to become aware . . . [and] reframe them, or at least curb their influence on our behavior.”[8] Recently, companies, police departments, and law firms have implemented this strategy in training programs for their employees to “become aware of how bias can show up and what to do about it.”[9] For example in the field of law, a major step toward limiting the effects of unconscious bias in our court systems has been to require potential jurors to receive instructional training on how to identify and control the unconscious biases they unknowingly bring with them to the courthouse. A leader in this effort is the United States District Court, Western District Court of Washington which has created an excellent videotape for potential jurors to watch on the topic of unconscious bias.[10] https://www.youtube.com/watch?v=hdjBbfdRLkA. The Washington video is the first of its type to be used and does a great job of guiding jurors to take responsibility for their uncontrolled bias and empower them to make unbiased decisions.[11] The video stresses that having bias does not make you a bad person and demonstrates the importance of learning how to identify your own biases and lessening the power they have over our decisions.[12]
To make our country a more inclusive and equal society, unconscious bias education should be required for children attending our public schools, and training on the subject should be mandated for local, state, and federal government employees including police departments. Furthermore, corporations and businesses of all types and sizes should be incentivized through the promise of tax cuts to train their workforces on how to identify and eliminate unconscious bias when it comes to workplace recruitment, hiring, promotion and firing. Mitigating, if not eliminating, the destructive effects of unconscious bias will help our country free itself from a legacy of racial bigotry and help foster a more color-blind American culture rich with diversity and mutual respect.
[1] https://www.britannica.com/topic/Police-Brutality-in-the-United-States-2064580
[2] Id.
[3] Id.
[4] https://www.britannica.com/topic/Police-Brutality-in-the-United-States-2064580/Police-brutality-after-World-War-II
[5] Id.
[6] Id.
[7] Shawn Marsh, The Lens of Implicit Bias, Juvenile and Family Justice Today, 16, 17 (2009).
[8] Id.
[9] Monica Thakrar, Unconscious Bias and Three Ways to Overcome It, Forbes, https://www.forbes.com/sites/forbescoachescouncil/2018/11/19/unconscious-bias-and-three-ways-to-overcome-it/#7de9dbe12677; see, e.g., Al Baker, Confronting Implicit Bias in the New York Police Department, N.Y. Times (July 15, 2018), https://www.nytimes.com/2018/07/15/nyregion/bias-training-police.html; Implicit Bias Initiative, A.B.A, https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/.
[10] See Western Wash. Dist. Ct., See Unconscious Bias, YouTube (Mar. 31, 2017),
https://www.youtube.com/watch?v=hdjBbfdRLkA.
[11] See Ross, supra note 1, at 123. Critics of the video have said that “the video will only serve to confuse the jurors since it is so far removed from the evidence and facts that they are supposed to be considering.” Id., at note 131, at 83.
[12] See Ross, supra note 1, at 128.