Implicit Bias, Intersectionality and the Shape of Things to Come in Disability Rights

1. Implicit Bias, Intersectionality and the Shape of Things to Come in Disability Rights Jo Anne Simon, Esq. Jo Anne Simon, PC New York State Assembly JoAnne@@JoAnneSimon.com

2. Implicit Bias One helpful brief resource is a short 5 pager by Handelsman and Sakraney for the White House Office of Science and Technology Policy 9-14-15

3. WHAT IS IMPLICIT BIAS? • A lifetime of experience and cultural history shapes people and their judgments of others. Research demonstrates that most people hold unconscious, implicit assumptions that influence their judgments and perceptions of others. Implicit bias manifests in expectations or assumptions about physical or social characteristics dictated by stereotypes that are based on a person’s race, gender, age, or ethnicity. People who intend to be fair, and believe they are egalitarian, apply biases unintentionally. Some behaviors that result from implicit bias manifest in actions, and others are embodied in the absence of action; either can create an unfair and destructive environment. • Biases are destructive for those who apply them as well as those being judged based on stereotypes. Those who judge others through a biased lens can miss the chance to hire superior employees or appreciate the true talents of others, including their own children.

4. EXPLICIT VS. IMPLICIT BIAS • Explicit bias involves consciously held, self-reported attitudes that shape how people evaluate or behave toward members of a particular group. Explicit bias is accessible – it can be measured with straightforward questions in surveys, such as “do you agree or disagree with the statement that boys are better than girls at math. It can also be combated with logic and discussion because it is acknowledged by the person expressing the bias. • Implicit bias, in contrast, is activated automatically and unintentionally, functioning primarily outside of a person’s conscious awareness. Therefore, measuring implicit bias requires more subtle tools, and combating it is more challenging.

5. IMPLICIT BIAS: INDIVIDUAL AND INSTITUTIONAL • Implicit bias is usually thought to affect individual behaviors, but it can also influence institutional practices and structures. For example, many institutions adhere to certain practices that disadvantage a subset of the institution’s members, such as holding faculty meetings at a time when parents are most likely to be picking up children at day care, which discriminates against parents of young children. • Institutional bias is usually not deliberate – schedules, for example, were often established at a time when most faculty were men married to women who stayed home with children. Thus, past biases and current lack of awareness can make an institution unfriendly to members of certain demographic groups.

6. Because most of our actions occur without our conscious thoughts, allowing us to function in our extraordinarily complex world, so our implicit biases often predict how we’ll behave more accurately than our conscious values. Multiple studies have also found that those with higher implicit bias levels against black people are more likely to categorize non-weapons as weapons (such as a phone for a gun, or a comb for a knife), and in computer simulations are more likely to shoot an unarmed person.

7. -Similarly, white physicians who implicitly associated black patients with being “less cooperative” were less likely to refer black patients with acute coronary symptoms for thrombolysis for specific medical care. -This also plays out in the widely documented problem of high mortality rates of black women, most often studied in connection with pregnancy, e.g: Serena Williams experience. -Another area where implict bias may be playing out is the very high suicide rate of Latina teenagers.

8. Other experiments show that people are: • more likely to hire a male candidate for a science position • rate the athletic ability of a person higher if they believe the person is African-American rather than white, and • rate the verbal skills of a person higher if they think the writer is a woman rather than a man. • parents rate the math abilities of their daughters lower than parents of boys with identical math performance in school. • College faculty are less likely to respond to an email from a student inquiring about research opportunities if the email appears to come from a woman than if the identical email ap-pears to come from a man. • Science faculty are less likely to hire or mentor a student if they believe the student is a woman rather than a man. In all of these experiments, expressions of bias are the same across faculty of different academic ranks, fields of study, and genders.

9. Intersectionality Term was coined in 1989 by professor Columbia Law School professor Kimberlé Crenshaw to describe how race, class, gender, and other individual characteristics “intersect” with one another and overlap.

10. Intersectional theory …asserts that people are often disadvantaged by multiple sources of oppression: their race, class, gender identity, sexual orientation, religion, and other identity markers, such as DISABILITY, which too often isn’t even on the list.

11. Today on the political right, intersectionality is seen as placing nonwhite, non-heterosexual people on top. To many conservatives, intersectionality means “because you’re a minority, you get special standards, special treatment in the eyes of some.” It “promotes solipsism at the personal level and division at the social level.” It represents a form of feminism that “puts a label on you. It tells you how oppressed you are. It tells you what you’re allowed to say, what you’re allowed to think.” Intersectionality is thus “really dangerous” or a “conspiracy theory of victimization.” BUT IT ISN’T ONLY CONSERVATIVES WHO ARE FLOMMOXED BY IT.

12. Shape of Things to Come in Disability Rights • Disability inserts itself in many current cases and battles. We’ll look at some areas: • Future Disability – is it protected? • Immigration crisis • Transgender bans and equal protection • Deference to agency interpretations of their rules • Website access • Harassment

13. Future Disability – is it protected? • Walter v. Birdville SD • Hammond v. University of Southern Mississippi • EEOC v. STME d/b/a/Massage Therapy and Lowe v. STME – how does this square with: • Shell v. Burlington Northern Santa Fe RR

14. Immigration crisis • Charles v. Orange County – failure to complete discharge plans for former detainees with severe mental health disabilities violated substantive due process- 8th Amendment prohibition again cruel and unusual punishment

15. Transgender bans and equal protection Karnoski v Trump – 9th Circuit remands for further findings on equal protection ground and imposes discovery demands

16. Deference to agency interpretations of their rules Kisor v. Wilkie– Auer deference – is it dead or alive? For the moment, it’s still alive.

17. Website access • Diaz v. Kroger • NAD v. Harvard and MIT • Gil v. Winn-Dixie • Robles v. Domino’s

18. Harassment • Fox v. Costco Wholesale Corp • EEOC v. Mine Rite Technologies • Toma v. University of Hawaii • Targeting of federal employees with disabilities