Accountability as a Debiasing Strategy: Testing the Effect of Racial Diversity in Employment Committees

Accountability as a Debiasing Strategy: Testing the Effect of Racial Diversity in Employment Committees Jamillah Bowman Williams, J.D., Ph.D. * ABSTRACT: Congress passed Title VII of the Civil Rights Act of 1964 with the primary goal of integrating the workforce and eliminating arbitrary bias against minorities and other groups who had been historically excluded. Yet substantial research reveals that racial bias persists and continues to limit opportunities and outcomes for racial minorities in the workplace. Because these denials of opportunity result from myriad individual hiring and promotion decisions made by vast numbers of managers, finding effective strategies to reduce the impact of bias has proven challenging. Some have proposed that a sense of accountability, or “the implicit or explicit expectation that one may be called on to justify one’s beliefs, feelings, and actions to others,” can decrease bias. This Article examines the conditions under which accountability to a committee of peers reduces racial bias and discrimination. More specifically, this Article provides the first empirical test of whether an employment committee’s racial composition influences the decision-making process. My experimental results reveal that race does in fact matter. Accountability to a racially diverse committee leads to more hiring and promotion of underrepresented minorities than does accountability to a homogeneous committee. Members of diverse committees were more likely to value diversity, acknowledge structural discrimination, and favor inclusive promotion decisions. This suggests that accountability as a debiasing strategy is more nuanced than previously theorized. If simply changing the racial composition of a committee can indeed nudge less discriminatory behavior, we can encourage these changes through voluntary organizational policies like having an NFL “Rooney Rule” for hiring committees. In addition, Title VII * Associate Professor, Georgetown University Law Center. J.D., Stanford Law School; Ph.D. (Sociology), Stanford University. Thank you to Richard Bales, Jeffrey Hirsch, Theresa Beiner, Veronica Root, Anthony Baldwin, and Wendy Greene for your feedback on early drafts of this Article. I would also like to thank Richard Banks, Kenworthey Bilz, and Darrell Miller for their valuable comments at the Culp Colloquium held at Duke Law School. Thank you to my colleagues Sheryll Cashin, Brian Galle, Paul Butler, and David Super for their insights. Lastly, thank you to my research assistants from Georgetown University Law Center, including Stephen Benz, Brooke Martin, and Lindsay Lincoln whose hard work was invaluable. 1594 IOWA LAW REVIEW [Vol. 103:1593 can be interpreted to hold employers liable under a negligence theory to encourage the types of changes that yield inclusive hires and promotions. I. INTRODUCTION ........................................................................... 1595 II. DEBIASING EFFORTS: A CONCEPTUAL FRAMEWORK .................... 1599 A. C HANGING M INDS , C HANGING H EARTS , AND C HANGING S TRUCTURES ......................................................................... 1600 B. C HANGING S TRUCTURES : N UDGING T HROUGH A CCOUNTABILITY .................................................................. 1603 III. ACCOUNTABILITY AS A DEBIASING STRATEGY .............................. 1606 A. A CCOUNTABILITY IN E MPLOYMENT : C OMMITTEES AS G ATEKEEPERS ....................................................................... 1607 B. T HEORY OF W HY R ACE M ATTERS ........................................... 1609 C. F ROM J URY S TUDIES TO E MPLOYMENT C OMMITTEES ............... 1611 IV. AN EMPIRICAL TEST .................................................................... 1612 A. R ESEARCH Q UESTIONS AND E XPERIMENTAL M ETHOD ............. 1613 1. Participants .................................................................. 1613 2. Procedures and Experimental Design ....................... 1614 3. Measures ...................................................................... 1615 B. H YPOTHESES ......................................................................... 1617 C. R ESULTS ............................................................................... 1617 V. UNDERSTANDING MECHANISMS .................................................. 1623 A. R ESEARCH ON B ENEFITS OF R ACIAL D IVERSITY ........................ 1623 1. Contribution of Diverse Perspectives ......................... 1623 2. Self-Critical Perspective Taking .................................. 1624 B. A LTERNATIVE M ECHANISMS .................................................. 1626 1. Contact Theory ............................................................ 1626 2. Salience and Social Desirability .................................. 1627 VI. DISCUSSION AND IMPLICATIONS .................................................. 1628 A. R OONEY R ULE FOR E MPLOYMENT C OMMITTEES ...................... 1628 B. H OW C OURTS C AN E NCOURAGE D EBIASING E FFORTS : N EGLIGENCE R EVISITED ......................................................... 1631 C. L IMITATIONS OF R EFORMS ..................................................... 1635 D. N UDGING N ONDISCRIMINATION ............................................. 1637 VII. CONCLUSION .............................................................................. 1638 2018] ACCOUNTABILITY AS A DEBIASING STRATEGY 1595 I. INTRODUCTION Despite the advances made in the Civil Rights Era, race is still a salient and politically divisive issue in the United States. There is clear evidence that traditional racism, such as de jure segregation and beliefs in the biological inferiority of African Americans, 1 is no longer the primary barrier to equal opportunity and full participation of minorities in the American workplace. 2 In the 21st century, racial minorities are limited by increasingly subtle, informal, and institutionally based forms of racism. 3 These contemporary forms of bias and discrimination continue to perpetuate disadvantages as employment disparities persist in hiring, compensation, promotion, and other high stakes employment outcomes. 4 This “[w]orkplace bias . . . is a 1. Black and African American are used interchangeably throughout this Article. 2. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach , 101 COLUM. L. REV. 458, 459–60 (2001) (describing “[c]ognitive bias, structures of decision making, and patterns of interaction” as the replacements of traditional or deliberate racism); see Eduardo Bonilla-Silva, The Structure of Racism in Color-Blind, “Post-Racial” America , 59 AM. BEHAV. SCIENTIST 1358, 1361–63 (2015) (describing “new racism” as the covert replacement of traditional racism which permeates society resulting in minorities being systematically disadvantaged). 3. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law , 94 CALIF. L. REV. 1, 2 (2006) (discussing how workplace structures and not overt policies or attitudes about race cause inequality); Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory , 38 HARV. C.R.-C.L. L. REV. 91, 91 (2003); Sturm, supra note 2, at 468–69; see Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations , 94 CALIF. L. REV. 945, 950–52 (2006) (defining implicit bias as an unconscious preference for or aversion to specific groups of people and describing how it can cause a person to act contrary to avowed beliefs); Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law , 58 UCLA L. REV. 465, 519–20 (2010) (discussing that we still live in a racially discriminatory society because of implicit bias); Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment , 94 CALIF. L. REV. 997, 1027–61 (2006) (describing four tenets of social psychology and using them to refute the way in which an individual must prove Title VII discrimination because of implicit bias). 4 . See Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination , 94 AM. ECON. REV. 991, 992 (2004) (finding job applicants with white-sounding names were 50% more likely to receive callbacks for interviews than applicants with African American-sounding names); John T. Jost et al., The Existence of Implicit Bias Is Beyond Reasonable Doubt: A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager Should Ignore , 29 RES. ORGANIZATIONAL BEHAV. 39, 47–48 tbls.1 & 2 (2009) (finding that people display implicit biases regarding “racial and ethnic outgroups,” sex, citizenship, and social status, and these implicit associations predict social and organizationally significant behaviors, such as the medical choices, voting preferences, and employment); Devah Pager, The Mark of a Criminal Record , 108 AM. J. SOC. 937, 959–61 (2003) [hereinafter Pager, Mark of a Criminal Record ] (finding that “a criminal record presents a major barrier to employment” and African Americans are “more strongly affected by the impact of a criminal record” than their White counterparts); Devah Pager & Hana Shepherd, The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets , 34 ANN. REV. SOC. 181, 200 (2008) (finding that despite progress since the early 1960s, “discrimination does continue to affect the allocation of contemporary opportunities; and . . . remains an important factor in shaping contemporary patterns of social and economic inequality”); Barbara F. Reskin, Including Mechanisms in Our Models of Ascriptive Inequality , 68 AM. SOC. REV. 1, 14–16 (2003) 1596 IOWA LAW REVIEW [Vol. 103:1593 reality in organizations large and small,” at all levels of the...