CEP Magazine - June 2021

What is implicit bias, and how does it affect our investigations?

The term “implicit bias” was first coined back in 1995 by psychologists Mahzarin Banaji and Anthony Greenwald, who argued that social behavior is influenced by unconscious associations and judgments, and that the “signature of implicit cognitions is that traces of past experience affect some performance, even though the influential earlier experience is not remembered in the usual sense—that is, it is unavailable to self-report or introspection.”^[1]A more simple definition offered by the University of California San Francisco Office of Diversity and Outreach is that “unconscious biases are social stereotypes about certain groups of people that individuals form outside their own conscious awareness.”^[2] In other words, the key aspect of implicit biases is that they are contrary to our own conscious beliefs, whereas explicit biases are those we express at a conscious level of awareness.

One example of the way implicit bias can cloud the investigative process is the use of leading questions. These are questions that suggest an answer or imply the answer you are unconsciously looking for. Some examples of leading interview questions that we may ask are:

• Was your manager’s decision in this issue ethical?

• Does your manger create a hostile work environment?

• Is your manager retaliating against you?

These questions imply that you as the investigator already know the answer or are looking for a certain answer. Interviewees may steer their answer toward what they think the investigator wants to hear. This leads to a bias toward a predisposed answer, rather than a more truthful and valuable narrative in the words of the interviewee.

The first step to avoiding the intrusion of an implicit bias into a workplace investigation is to recognize and acknowledge it exists. There are many kinds of unconscious biases, but for the purpose of this article, we will focus on these six types:

1. Affinity bias: Feeling an affinity toward a person.

2. Confirmation bias: Making a judgment about another person and then subconsciously looking for evidence to back up our own opinions of that person.

3. Contrast effect: Comparing one individual to others.

4. Halo effect: Acknowledging a good thing about a person and letting the glow from that “halo” form our opinion of everything else about that person.

5. Horns effect: Acknowledging a bad thing about a person and letting the “horns” form our opinion of everything else about that person.

6. Similarity or in-group bias: Naturally wanting to surround ourselves with people we feel are similar to us or are “in our group.”

Once we recognize that our approach to an interview is being affected by an implicit bias, the goal then becomes to make the unconscious more conscious. People who know they have biases and admit to them can usually cognitively correct them, because there is a difference between holding a bias and acting on that bias.

How do you cognitively correct for implicit bias?

Be self-reflective and honest with yourself about your biases and the way they can affect your investigation or ability to address an employee issue. For example, I have often seen a name come across my desk that, because of past professional dealings by myself or my collaborators, make me react unconsciously with the thought, “This guy again?” Realizing that I’m exercising an implicit bias, my next thought is the conscious recognition that a “frequent flier” is not inherently guilty of whatever new allegation is being raised (horns effect potentially leading to confirmation bias), and I need to maintain a sense of neutrality about the allegation in order to investigate it properly and fairly.

Develop a question set for yourself before you begin the investigation and then remind yourself of these questions throughout your investigation. Examples:

• Am I defaulting back to what I know of this person, or am I solely looking at the evidence in this set of facts (horns effect and confirmation bias)?

• Am I comparing this person’s behavior to others and doing so outside of the context of policy-defined behavior of the organization (contrast effect)?

In order to fully counteract our unconscious biases, we have to be vigilant and self-aware. It is important to pause at various points of the investigation to check whether implicit biases are creeping into our thought process, our interview lists, our interview questions, our ultimate opinion on credibility, and the vigor in which we look at certain issues.

It is also important to be mindful to not allow the biases to influence your investigation, especially if that bias matches one of your own. I have fallen into this pitfall on more than one occasion. I once had a human resources manager refer an ethics issue to me, and as she gave me the intake information, she told me over and over that the person raising the complaint was not a “complainer.” She had known him for years and had never known him to complain about anything—the inference being that the allegations must be true if they were being raised by this particular employee (halo effect and affinity bias). It turned out that the noncomplainer was wrong, and the issue was not substantiated.

Another good practice is to find someone with whom to peer-check your perceptions. Periodically invite a peer investigator (if available) to sit in on interviews with you or participate in an investigation. If you work alone, reach out to your network of professional associates. And whenever possible, do not choose someone who you know shares your bias, unless you are both willing to admit to it and talk through how to move past it.

Seek and listen to feedback

Seek regular feedback from investigation participants. Be committed to learning and growing rather than being insulted or defensive. One of the most helpful pieces of feedback I ever received was from one of my organization’s senior leaders, the equivalent of a vice president. When an investigation was completed, I heard that he felt like I was biased against one of his people during the investigation. I could have taken that assessment and written it off: “Well, of course he thought I was biased. I substantiated that one of his managers had engaged in retaliation.” However, I chose to engage him in a conversation so that I could learn exactly what had given him that impression.

What I discovered was that he felt like I was very aggressive in my demeanor when presenting the case during the disciplinary meeting. This gave him the impression that I had “set out” to find the manager guilty from the start of the investigation (confirmation bias). I knew this was not true, but regardless, I had given off that sense when presenting my findings. My initial reaction was to feel insulted, but I chose to talk myself down from that initial reaction, and I gave a lot of thought to what words I had used in that meeting. I concluded that my passion for the right thing had made me sound too vested in the outcome of the disciplinary meeting.

This is a hard balance for me and for, perhaps, many investigators. We are investigating bad behavior, and we know that a part of an effective ethics and compliance program is the promotion and enforcement of appropriate incentives and disciplinary measures. It can be hard not to feel like we have an interest in the outcome. Ultimately, however, our job is to be objective finders of fact. I knew that I had looked at the facts and evidence, and that the facts and evidence proved that the manager had engaged in retaliation. Nevertheless, my passion for “the right outcome” had come through too loudly and had come off as a bias.

Although in this case I had not been subject to an implicit bias against the manager, the feedback gave me the opportunity to conduct a self-assessment and confirm that the problem had been in my style of presentation, not the quality of my investigation. Now, two years past the investigation, this senior leader gratefully refers cases to my program when he hears of concerns within his organization, and I recently presented a lunch-and-learn on bias in investigations to his management team. The feedback that I received from this manager had a lasting impact on me and helped me create renewed mindfulness of the danger of biases, real or perceived.

Becoming mindful

One of the very best ways to create mindfulness is to engage in this activity. Divide your group of investigators or collaborators into six teams. Each team will be assigned a one-page handout with a bias and its definition. The biases are affinity bias, confirmation bias, contrast effect, halo effect, horns effect, and similarity bias. The teams will privately discuss their assigned bias and determine: (1) What are the ways this bias manifests in our work; and (2) what are some ideas on how we can be mindful of and combat this bias in our dealings?

At the conclusion, each team will present their discussion to the entire group. If you do not have a large group, you can engage in a discussion or just perform the activity yourself as a reminder. (Note: This is also a great activity to do with groups of managers who often have issues reported to them but do not always react appropriately.)

Now think about those interview questions again; think of how to frame them in a nonleading, nonbiased fashion.

Bad: Was your manager’s decision-making ethical?

Better: What concerned you about your manager’s decision-making process in this issue?

Bad: Does your manager create a hostile work environment?

Better: Tell me about how your manager interacts with the group.

Bad: Is your manager retaliating against you?

Better: How did your manager treat you after you raised the ethics concern to management?

Continuously learn to improve any bad habits

As investigators, we should never stop learning and growing. Although I have been conducting workplace investigations and running programs in various capacities for almost 15 years, I often attend presentations geared toward new investigators. I find this to be a good way to remind myself about lessening bad habits I may have gained over the years. Likewise, we should strive to always manage the ways in which these implicit biases can creep into our work. This does not make us bad investigators—as long as we work to recognize, acknowledge, and manage them.

Takeaways

• Everyone has implicit bias. That does not make us bad investigators.

• Acknowledging and managing these implicit biases is the key.

• Check yourself and find people to be on your peer-check list. Use the activity provided as a tool.

• Be aware of how bias can creep into your question sets for investigation interviews. Craft questions that do not feed particular answers to the interviewee.

• Seek regular feedback with an open mind and internalize for maximum benefit.