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

• Author: Jamillah Bowman Williams
• Position: Associate Professor, Georgetown University Law Center. J.D., Stanford Law School; Ph.D. (Sociology), Stanford University
• Pages: 1593-1638

1593

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 Sch ool;

Ph.D. (Sociology), Stanford University. Thank you to Richard Bales, Jeffrey Hirsch, Theresa

Beiner, Veronica Root, Anthony Baldwin, and Wendy Greene for your f eedback 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.CHANGING MINDS, CHANGING HEARTS, AND CHANGING

STRUCTURES ......................................................................... 1600

B.CHANGING STRUCTURES: NUDGING THROUGH

ACCOUNTABILITY .................................................................. 1603

III.ACCOUNTABILITY AS A DEBIASING STRATEGY .............................. 1606

A.ACCOUNTABILITY IN EMPLOYMENT: COMMITTEES AS

GATEKEEPERS ....................................................................... 1607

B.THEORY OF WHY RACE MATTERS ........................................... 1609

C.FROM JURY STUDIES TO EMPLOYMENT COMMITTEES ............... 1611

IV.AN EMPIRICAL TEST .................................................................... 1612

A.RESEARCH QUESTIONS AND EXPERIMENTAL METHOD ............. 1613

1.Participants .................................................................. 1613

2.Procedures and Experimental Design ....................... 1614

3.Measures ...................................................................... 1615

B.HYPOTHESES ......................................................................... 1617

C.RESULTS ............................................................................... 1617

V.UNDERSTANDING MECHANISMS .................................................. 1623

A.RESEARCH ON BENEFITS OF RACIAL DIVERSITY ........................ 1623

1.Contribution of Diverse Perspectives ......................... 1623

2.Self-Critical Perspective Taking .................................. 1624

B.ALTERNATIVE MECHANISMS .................................................. 1626

1.Contact Theory ............................................................ 1626

2.Salience and Social Desirability .................................. 1627

VI.DISCUSSION AND IMPLICATIONS .................................................. 1628

A.ROONEY RULE FOR EMPLOYMENT COMMITTEES ...................... 1628

B.HOW COURTS CAN ENCOURAGE DEBIASING EFFORTS:

NEGLIGENCE REVISITED ......................................................... 1631

C.LIMITATIONS OF REFORMS ..................................................... 1635

D.NUDGING NONDISCRIMINATION ............................................. 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 G eneration 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 Tur n 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 desc ribing 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 Hamilt on 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 Experime nt on Labor Market Discrimination, 94 AM. ECON. REV. 991, 992

(2004) (finding job applicants with white-soun ding 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 Ma nager Should Ignore, 29 RES. ORGANIZATIONAL BEHAV.

39, 47–48 tbls.1 & 2 (2009) (finding that people display implicit b iases regarding “racial and ethnic

outgroups,” sex, citizenship, and social status, and these implicit associations predict social and

organizationally significant behaviors, such as the medical ch oices, 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 maj or

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 a nd economic inequality”); Barbara F. Reskin ,

Including Mechanisms in Our Models of Ascriptive Inequality, 68 AM. SOC. REV. 1, 14–16 (2003)