Redefining Bias in the 21st Century

The U.S. Supreme Court has now issued its opinion in the incendiary case of the New Haven, Conn., firefighters.

The nation's top court came down on the side of the 20 mostly white firefighters who, claiming reverse discrimination, filed suit after not securing promotions despite attaining the highest scores on a promotions test test on which all African American and all but two Hispanic firefighters received a poor score.

Was justice served? We think not, but not for the obvious reason. Polarization rather than greater fairness will rule the day, and this would have been the case had Court had voted 5-4 for the City of New Haven, not the firefighters.

The case itself, while raising complex questions about workplace bias, involved civil rights law fashioned in an era that saw far more blatant discrimination. Back then, the urgency of segregation and widespread, institutional racism did not allow for a thoughtful undertaking of more nuanced forms of bias. Now, subtle bias has become more insidious.

Discrimination law considers how people are treated solely due to their membership in a particular group--race or gender or national origin or religion. It gives short shrift to a careful analysis of how being part of said group can impact such factors as our self esteem, our life experiences, the resources we enjoy or don't receive, our fears and what we believe to be our entitlements.

We applaud the city of New Haven for critically examining the test results and wondering why so few firefighters of color performed well. Although most of us believe tests and other performance indicators to be accurate measures of qualifications, the truth is they often can be ridden with subtle bias.

Our research bears this out. When the Level Playing Field Institute conducted a landmark study of 19,000 professionals and managers in 2007 to determine the role of bias in voluntary employee turnover, we found that people of color were three times more likely to leave due solely to unfairness.

Hundreds of stories poured into the Institute about the failure of managers to recognize employees' abilities. An Asian attorney wrote about the partner who referred to her typos, even minor ones like whether a term should be capitalized, as an issue with the English language. An African American MBA graduate compared notes with her fellow classmates after interviews to learn that she was the only one being asked about diversity; her classmates, in contrast, received substantive case study questions. Most of their experiences wouldn't fall under current discrimination law.

The problem goes beyond employment measures. The SAT, accepted as the measure of how a student will perform in college, turns out instead to be the best indicator of one's family income. Stories abound of how biased test results and measures, rather than hard work and merit, can give some an unfair advantage over others.

Take, for example, an immigrant high school student who studied night and day for the SAT exam without the benefit of prep courses or parents who spoke English. For months, she memorized every word she came across. Yet, when asked in class to answer an analogy question using the word "gazebo," she drew a blank.

The student next to her answered the question quickly and correctly. That student didn't learn the word from a vocabulary sheet; she had a gazebo in her backyard growing up, she divulged later, just like almost all of the houses in her neighborhood. Despite such hurdles, that immigrant student would go on to become a lawyer - and one of the co-authors to this commentary.

If we truly want to promote our society as a level playing field, then we must become more adept at differentiating between what actually is earned versus what is a matter of circumstance. We need thoughtful new standards that consider what our performance indicators truly measure.

One alternative is for colleges and workplaces to adopt a "distance traveled" metric, one that measures not just who crossed the finish line first, but also the distance from each individual's starting point to the finish line. For example, a college might consider a system that requires disclosure from parents of all the resources provided to the child - writing coach, tutors etc. Workplaces might give added weight to candidates who earned their accomplishments, including by paying their own through college.

The results might surprise us.

In the future the Court should not oversimplify the issue of equal opportunity and access to create bad civil rights law. Instead, we need to design new ways of attacking unfairness and bias in the 21st century.

 

Follow Mitchell Kapor on Twitter: www.twitter.com/mkapor

Comments

[Rumplestiltskin]

"One alternative is for colleges and workplaces to adopt a "distance traveled" metric, one that measures not just who crossed the finish line first, but also the distance from each individual's starting point to the finish line."

Are you serious?
So, if a child has bad parents, that would be a "distance traveled" metric?
How are you going to judge bad parenting?

[GiveUsFree]

Why are parents bad, because they couldn't afford to give their child certain advantages? Are you equating wealth with good parenting? I know of one dumb rich person who went to Princeton. His name was G.W. Bush. He got by on legacy, which to me is the most blatant form of white privilege and affirmative action there is.

I don't agree with everything in this article, but I can relate. I was a working college student and my grade point average for the semester was approximately 3.6. When I had saved enough money to pay all my bills and not work the last semester. I earned a 4.0 in higher level classes like Differential Equations, History of Math, etc. These were not easy courses, by no means. But I found it easier to think when I only had to concentrate on school. We lose a lot of talent and miss out on so much genius due to the fact that kids are distracted. You can't concentrate on Algebra, if you are hungry or not getting enough sleep due to the sirens and gun shots at night.

I do think there is something to be said about a person who overcomes these obstacles and excels in spite of them.

[BlackJAC]

More like they didn't instill any sort of work ethic in their kids. Dubya, like a lot of rich kids, grew up thinking that their station in life was the natural order of things. His parents probably indulged him at every turn, thinking he needed to be taken care of. He consequently never had the this-is-th­e-doom-tha­t-awaits-y­ou-if-you-­fail speech/dem­onstration that Paris Hilton got with her jail sentence.

[CommonSenseRules]

This is such a crock. The tired old minorities not getting enough sleep because of gun fire and sirens. PLEASE.

I live on the west side of Baltimore and I see the welfare system in all its glory. Trust me, these kids are only distracted by adults that don't teach them anything. It has nothing to do with losing sleep since the kids are running around outside at 11:00 and midnight on school nights. That's why they are tired, not because of sirens. PLEASE.

Are all liberals this niave? Do they believe everything they hear? Do they ever go into the ghetto and see for themselves, or better yet, live there like I do?

If they did, they would not pump out bs like, oh, the poor kids do so poorly because of lack of sleep due to gun shots. PATHETIC and completely false.

These kids are fed...well, thanks to welfare. They are living in houses...thanks to welfare. They have multiple TVs, cars, video games....thanks to welfare. They have everything that is needed to be successful except parents that are honest and are not simply working the systems. These kids are NOT parented by anyone. They are not on any kind of schedule and are not taught to take school seriously. Again, I see every day in my own neighborhood. THAT is why they fail....not because of gun shots and sirens.

[mad tn dem]

unfortunately, subtle bias hasn't evolved in Tennessee..I'm a living witness to the number of racist comments I overhead during the presidential campaign...they let ugly all hang out. I am further embarrassed when we make national news coverage; my state elects idiots so we dems in the south are without a voice, and lots of time, without hope.

[Donkslayer]

We can and should continue to work on providing the best start for our kids in America. Life isn't fair, however...and the string of the logic motivating this post can be both ridiculous and dangerous. If a child is beaten or not loved...should we not incarcerate if they beat their wife? It's not fair since most children aren't abused: same reasoning.

In this case, we're talking about a leadership position in a life/death profession. Unless the test had nothing to do with firefighting, I think we can be reasonable and have an environment where the best firefighting leader gets the job.

[COPerez]

"In this case, we're talking about a leadership position in a life/death profession. Unless the test had nothing to do with firefighting, I think we can be reasonable and have an environment where the best firefighting leader gets the job."

But think about this... what, in the test, would cause such a disparity in scores between "whites" and firefighters of color? By your logic, the test proves that only whites are capable of being a firefighting leader. But if that causes you pause - and it should - then what caused that gap?

[CommonSenseRules]

Ummm, maybe they didn't study? Maybe they didn't take it as seriously as they should have? Maybe they thought they would get the job regardless since they were minorities? Maybe they got too drunk the night before and were ill prepared to take the test? Maybe they had other life distractions the day they took the test?

There are many factors that could have happened....but liberals automatically think...racism.

[mccabe49]

No it is NOT the same reasoning and read some books. A good one to start with is Children at Risk. How easy for you to just say 'life is not fair." Get's you off eay doesn't it? sort of like saying well it's not my problem. The compassion of you right wingers is underwhelming.

[sngfx]

I grew up in a single parent household, with no money or privilege. No one I knew had a gazebo.
And yet I scored 1170 on my second go at the SAT. There are a LOT of questions on that test; even if a few skew for one demographic, there's no way someone can contend there are enough to preclude a certain group from earning a good score.

That argument is really silly and absurd, anyway. Of course an immigrant whose folks don't speak the language is going to be at a disadvantage to someone who grew up in this country and can draw on a lifetime of native experience and vocabulary.

It sounds as if you're suggesting we send kids to school for 12 years, then take the least educated, most ignorant of the lot and tailor the test so that he/she can pass. That way, everyone can be a winner, right?

While you may applaud the city for examining the test results -- and I think it's fair to raise concerns, but not throw the results out -- you really should question why no one has yet examined the test questions. I saw an interview with a city official who admitted no one had seen the test, and that they had no actually evidence of any kind of bias. It's very irresponsible for a city to create this kind of situation when they don't even know if there is merit to their decision.

[COPerez]

Nice score. But - a sample of one is no sample.

[BlackJAC]

How do you determine the sampling, especially since nobody falls neatly into one subgroup?

[Reality Czech]

I would think those immigrants coming from Romance-language speaking places might actually have an SAT advantage given the lingusitc roots of Latin in many of the vocabulary questions asked.

My high school spanish came in as or more handy than did my native English.

[WhitCrosley]

I think the "Gazebo" defense is rivaling the "Twinkie" defense in absurdity.

Given that there were no “cultural bias” arguments about the fire fighter’s exam, this essay really has nothing to do with overturning the New haven case, and everything to do with the tired argument of “cultural bias” that we learned about on the 1970’s sitcom “Different Strokes!”

Since the famous “gazebo” scare never effected the woman’s education and advancement, perhaps you can even out this anecdote with watching the documentary “Spellbound” where the 12 year old daughter of Mexican immigrants who speak zero English, not only speaks perfect English, but goes on to the finals of the U.S. Spelling Bee. No private tutors or classes for her!

[BlackJAC]

Agreed. My sister didn't know what a Stradivarius was despite attending one of the private high schools the Vanderbilts send their kids to. And you can learn what a gazebo is from an episode of THE SIMPSONS.

[1will]

I have been following this case in the media and have seen lawyers for New Haven and various groups such as the NAACP talking about this case. They could not offer one single question that was racially biased. One attorney mentioned that a question regarding New Haven delt with "Downtown" and "Uptown." He said that there is no uptown or downtown in New Haven. This is all that he had. This attorney that considered the test biased and unfair couldn't find anything worse than that. Apparently only white people know that New Haven doesn't have an uptown or downtown. That's secret knowledge that we pass onto our children when they become of age.
The best people passed the test. The ones that worked the hardest for their scores passed.
I am not a firefighter but I know that it is an extremely dangerous job and you don't fight fires as a mob. A leader must plan the strategy and use his people in the safest and most effective manner. You do not want a Lt. or Capt. that got his job due to quotas. You want the most qualified person in charge so the firefighters get home safely and fire gets put out. Would you want to enter a burning building under the command of a Lt. that got his job because of race? Save the quotas for non life threatening jobs if we must have them.
http://newhaven20.com/

[COPerez]

What, then, explains the very real disparity between "white" firefighters and those "of color?" Only the whites were smart enough or studied hard enough? Something is not right here...

[BlackJAC]

Do we know who came in 21st on that test? That would be a good starting point in determining that answer.

[Mydknyght]

The disparity has to do with the discrimination in the educational system, not the workplace. The reason only the whites were "smart enough" as you say is because whites and blacks (and other minorities) are still segregated when it comes to schools and living situations. How many all black neighborhoods and schools would you bet are in New Haven? I would guarantee you that the quality of education and living situations are radically different in those two areas.

What we need to do is fix this educational and housing disparity, so that all people have a fair shot at learning and growing into productive members of society. The test was probably not biased, but the minorities taking the test were surely at a disadvantage. However, promoting people of color by force like this particular case will not fix the problem.

[tom928]

Although I think the court decision was fair, this is the best argued response to the decision from the left. If more writers and readers on the Huffington Post thought and wrote this way we'd all be in a lot better shape.

[omobob]

How many black Senators in Congress? That the good old boy network has been dismantled, has been the rallying cry of the white disenfranchised, who spent the last 200 years keeping people of color down.

[DelawareVol]

What's your point about black Senators in Congress??? So, let me see if I understand what your saying here---it's impossible for White people to be discriminated upon??? That in and of itself is a prejudicial and racist comment... The fact is the City of New Haven discriminated against the Firefighters, end of story... I'm assuming that you're a liberal... Therefore, you're supposed to be in favor of fairness and equal opportunity for all----well this was NOT fairness and equal opportunity for those Firefighters.... You're comment is hypocritical at best and r-a-c-i-s-t at worst.... I guess I shouldn't be surprised though, liberals tend to be the biggest hypocrites in our society...

[bccmeteorites]

Not to take your comment apart, but sure white people can be discriminated against but I think what he/she means is the entire system is rigged from beginning to end. It's easy to connect the dots if anyone wants to do that. Don't you find it interesting that Blacks were give the right to vote but then why do you think the Federal Govt send troops in to make sure they are allowed to vote. What's the point of giving a group something on paper when they cannot exercise that right without fear of life and liberty for say another 60-70 years? They (the political hand in hand with business interests) have created the conditions for minorities to fail. I know because I have seen it first hand. Do you seriously think Blacks would have been allowed to -safely- attend white majority public schools in the South without Federal Troop escorts? Of course not. There are countless ways in which the conditions for minorities to fail are created. Try getting affordable medical, or auto insurance in a minority saturated zip code and see what happens.

[Donkslayer]

How many black players in the NBA? They make a lot more than Senators.

[ssgman]

Your comment is beyond id iot ic.

[1will]

Blacks make up only about 12 1/2% of the country. They don't have a majority in any states so it's hard to get enough votes when running on race. Unfortunately most black politicians run on race. This works in DC, Chicago, Baltimore, etc but is a losing strategy when running for national office. This is why Obama got elected (by white people) while Jesse's run was a joke. Blacks need to run as the candidate for ___________ (whatever State) rather than the candidate for the black people of that state. That means leaving the inflamatory rhetoric behind.

[BlackJAC]

Consider what running for public office entails: constantly begging strangers for money, sucking up to cranky single-issue activists, having all of your mistakes in judgment blown out of proportion by the opposition...what sane person wants that headache?