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Facial disfigurement is too disturbing, or why I won’t hire you
Roger Ebert was a standout when it comes to facial disfigurement. We knew him before it happened. We applauded his bravery and courage in re-emerging publicly after disfiguring cancer surgery. Yet we also stared in disbelief when we saw him. His disfigurement was such that it gave the sense he was always smiling. That probably helped us to accept his new look. It is not, however, the case when we meet people who have facial disfigurements for the first time. We stare. We look away, knowing it is not polite to stare, and then we look again. It’s hard to not look. Staring is so common there are multiple web pages to give adults with facial disfigurements ideas for coping with it.
And while it makes sense to assume it’s tough for people with facial disfigurements to be hired, English researchers wanted to compare one disability to another. They chose to compare people with facial disfigurement to a second group of wheelchair users (“a functional disability with little aesthetic impact”). There is a “substantial degree of discrimination against wheelchair users in recruitment” according to the author’s review of the literature. There is, however, no prior research on discrimination against those with facial disfigurements although we do know employers tend to favor attractive applicants and there are certainly ample anecdotal accounts of discrimination experienced by those with facial disfigurements.
The researchers hypothesized that discrimination against applicants with facial disfigurements would be especially high in jobs with high levels of customer service. They also hypothesized that if costs for accommodation were a concern for the employer, this would harm chances of hiring more severely for those in wheelchairs. Armed with their hypotheses, the researchers went to work. They identified specific jobs that would be high in customer service demands (e.g., administrator/receptionist and salesperson); or low in customer service demands (e.g., information technology support analyst and personal assistant). And they specifically selected jobs “for which facial appearance and mobility are both irrelevant considerations” and ensured their application materials were strong so that any “observed discrimination would depend on the attitudes of the employer”.
Each applicant was described as being currently employed in the same sort of position they were applying for and as seeking career advancement. All applicants were described as being under 30 years old. Applicants identified themselves as wheelchair users or as having a facial disfigurement via the following notes on their cover letters:
“I was born with a rare, non-contagious, congenital disorder that has caused distortion of my facial features.” In addition to the sentence on the cover letter, the applicant with facial disfigurement also had a note at the top of the CV: “Please note: I was born with a rare congenital disease which has caused the bones in my jaw and face to fuse and to stop growing in early infancy. The condition has left me with a highly-distinctive, noticeably different face. I have never let my condition restrict my life and overcoming people’s reaction to my distinctive face has led me to develop my confidence and construct highly effective communication skills that have helped me grow as an individual.”
In the wheelchair condition, a note at the top of the CV said “wheelchair user” and the cover letter said “Please note I am a wheelchair user and so will require access ramps if I am called to interview”.
The employer sample was a group of 144 companies actively recruiting for one of the following vacancies: administrator/receptionist, salesperson, IT support analyst, or personal assistant. There were 36 companies for each type of position. On average, company size was 153 persons (with a range from 2 to 2000 employees). Of the positions advertised, the level of customer contact would be highest for sales, then administrator/receptionist, then personal assistants and finally the IT support positions.
Each employer received three (different) applications from the experimenters: one had no information as to disability, one identified as a wheelchair user and the third as having facial disfigurement. Equal numbers of male and female applicants were used, with the exception of the personal assistant applications which were all from females. (The researchers believed male applicants for those positions would be suspect.)
The researchers compared the jobs with low customer contact (the IT support analyst and the personal assistant) to those with high customer service (the sales and administrator/receptionist positions) to examine differences in response patterns to the three job applicants (one with no disability, one using a wheelchair and one with facial disfigurement). And here is what they found:
Responses were overall more positive for the applicant with no disability.
The highest amount of discrimination was seen in the administrator/receptionist position, then sales, then in the personal assistant position, and absent in the IT support analyst position. (This supported the hypothesis that the higher customer contact positions would have the most discriminatory practices and lower customer contact positions would have less discrimination in hiring.)
There were different patterns though for the applicants with facial disfigurement and the applicants using wheelchairs.
When customer contact was low, there was no real difference in the response rate between control applicants (e.g., without disability) and applicants with facial disfigurement.
However, customer contact being high or low made no difference for wheelchair users. The non-disabled applicant was always favored over the applicant in a wheelchair.
The researchers also compared level of discrimination to more familiar sorts of discrimination. They describe the discrimination those with facial disfigurement faced (58% according to the authors) in high customer service jobs as being comparable to the upper end of the range reported for race discrimination and age discrimination.
Almost 45% of the wheelchair users did not get a call back for interview regardless of whether the position was high customer service or low customer service. The good news here is that the employers did not appear particularly concerned about customer reactions to an employee in a wheelchair (since there was no difference between the high customer service and low customer service positions). The authors believe the reason for discrimination against wheelchair users is related to concerns about the costs of accommodations among London employers. (They believe this since follow-up calls to the employers showed only 23% were aware of government programs for grants and advice when one hires a recruit with disabilities. Further, only 13% of those workplaces were wheelchair accessible! For those that haven’t done much international traveling, the US laws — Americans with Disabilities Act–mandating public accessibility for the mobility impaired is a model most countries are very late to embrace.)
Overall, the authors believe that having a facial disfigurement will make your employment prospects akin to those with mobility impairments resulting in the use of a wheelchair. They conclude the article as follows:
“It appears from these results that there is recruitment discrimination against people with facial disfigurements in jobs involving a larger degree of customer contact, suggesting that concerns about aesthetics or potential stigma by association may be important. Discrimination against wheelchair users showed wide variability among the job types but no consistent pattern.”
Here in the United States, we would expect a slightly different pattern given the accessibility of workplaces and the commonness of ramps and sidewalk cuts thanks to the Americans with Disabilities Act. However, we cannot know that for sure. In terms of litigation advocacy, you want to ensure the following:
If your client has a facial disfigurement, you want to have them explain to the jury what the disfigurement stems from and how long they have dealt with the realities of facial disfiguration. Even if it is not relevant to your case and even if it isn’t fair–you need to help jurors get past the issue. If you don’t talk about it up front, jurors will wonder, hypothesize and stare. If you do discuss it, they may still stare–but they won’t be able to form their own hypotheses given a straight-forward explanation. On top of that, a straight-forward explanation will tend to result in jurors liking your client more.
Use universal values to help jurors see your client as like them. We use faces to gather a lot of information as to whether someone is kind, honest, trustworthy, and more. Facial disfigurations make that more difficult for us. Give jurors evidence that your client is worthy of their empathy and fair consideration of the facts.
Jurors will watch how you interact with a client who is impaired. Are you comfortable talking with them about it? Do you interact, discuss, and joke with them in a way that’s like anyone else? They will take your relationship with the impaired person as a reflection of what it would be like to have a natural relationship with that individual. It normalizes them.
“Differentness” in many guises makes others feel uncomfortable and awkward. Your goal when you have a client with a difference that cannot be concealed is to show your own comfort with the client and thereby help the jurors feel comfortable as well.
Stone, A., & Wright, T. (2013). When your face doesn’t fit: employment discrimination against people with facial disfigurements Journal of Applied Social Psychology, 43 (3), 515-526 DOI: 10.1111/j.1559-1816.2013.01032.x
“The hubris penalty” is applied to “uppity” Black athletes
Do we think a football player should be punished for performing a celebration dance? It depends on his race. Even non-football fans have seen the celebration dances done by athletes following touchdowns. If the football player is Black, that arrogance should be punished. If White, it may still be arrogance, but that’s okay. Because they are White.
Wow. Researchers from Northwestern University wondered if Black football players would be seen more negatively (they call it “punished”) for celebration dances following touchdowns. There is research saying that members of high-status groups can behave arrogantly without penalty but that low-status group members cannot. The researchers conducted three different experiments:
The first experiment sampled 74 part-time MBA students (29 female, 45 male) who were all US born, “non-Black” and knowledgeable about American football. They read a description of Black or White football players who either celebrated with a “signature dance” following a successful touchdown or did not celebrate. They were then asked if the athlete should get a salary increase for the successful play.
Black football players who danced were punished financially more than Black football players who didn’t dance (and were therefore seen as more humble). White football players were not penalized similarly–that is, there was no difference in the recommended financial award for the arrogant versus the more humble White football player.
Study 2 sampled 54 non-Black males who could report the length of a football field. This was an age (19 years old to 75 years old) and income diverse (average income slightly below $73K/year) sample. The participants reviewed the same story as those in Study 1 had reviewed and were then asked this question: “If the average wide receiver in the NFL makes around $1M, how much do you think Malik Johnson (or Jake Biermann if the player was reported to be White) should make?”
The results were similar to Study 1 with Black football players celebrating being financially punished while White football players were not.
For Study 3 (now satisfied that Black football players were going to be punished for their arrogance) the researchers wanted to see why and when Black football players would be penalized. Again, 105 White participants able to report the length of a football field were gathered from an online sample. It was again a diverse sample: age ranged from 17 to 68; household income was on average $44K; and women (67 women, 38 men) were included in this sample. This time the participants read similar vignettes to the first two studies with some modifications: the football players in the vignettes were all Black and either celebrated against a White player, celebrated against a player who race was not specified, did not celebrate at all, and in a “humble” condition, the player simply immediately surrendered the football to a referee as prescribed by the official playbook.
Black players in the celebration against a White opponent condition were rewarded significantly less than the Black player in the no-celebration condition or the humble condition. Similarly, the Black player in the celebration condition not specifying the race of the opponent was also rewarded significantly less than those who did not celebrate and “marginally less” than the Black players in the humble condition.
When the Black football players celebrated, they were penalized more than those who did not celebrate/were humble.
The researchers call this effect the “hubris effect” and refer to the “historical” notion of the “uppity Black” who needed to be taken down a peg or two. This research shows what they describe as “robust evidence” for this sort of hubris penalty against Black athletes but no similar effect for White athletes. In other words, we think it’s okay for White athletes to be arrogant, but Black athletes should know their place.
They cite other disturbing and recent research finding similar patterns:
From a 2010 study: Blacks are penalized for over-performance academically and downplaying achievement or feigning incompetence helps to avoid backlash.
From a 2009 study: Black CEOs benefitted from features that made them seem less competent than “ordinary Blacks”. The assumption here was that too much competence could be threatening to Whites.
It’s a sad and frustrating window into the state of race relations/perceptions in the current day. From a litigation advocacy standpoint, this has multiple implications. [Please understand that we are no more enthusiastic over the following recommendations than we are with the bias that spawned them. We're taking life as it comes here, and trying to optimize a bad situation.]
Prepare your witnesses and parties with awareness of this dynamic and the expectation that Blacks must be humble.
If your Black client, party, or witness is of higher education, SES, attractiveness, et cetera–pay special attention to evoking juror awareness of “universal values” your client shares with the jurors so the jurors see your Black client as more like them than not like them. The goal with this strategy is to decrease the likelihood of your White jurors being threatened by a high achieving Black party or witness). It’s a case of being more ‘humble’ than should be appropriate. It’s wrong, but it helps.
Consider mitigating the tendency to lower awards to Black plaintiffs or to penalize Black defendants too harshly by using one of our favorite litigation advocacy techniques.
Hall, E., & Livingston, R. (2012). The hubris penalty: Biased responses to “Celebration” displays of black football players Journal of Experimental Social Psychology, 48 (4), 899-904 DOI: 10.1016/j.jesp.2012.02.004
Hey Professor! Get married and get tenure–if you’re male!
But if you’re a woman? Not so much. 
A new report put out by the American Historical Association shows us that career advancement varies by marital status for males and females. If you’re a man, being married makes you progress through the ranks faster: in 5.9 years rather than 6.4 years. If you are a woman, however, being married meant an average of 7.8 years to move from Associate to Full professor. If you were an unmarried woman, that same transition took an average of 6.7 years.
It is interesting to note that female full professors were 2x more likely than men to list their marital status as divorced or separated. They were also more likely to have never married at all than were their male colleagues. Sometimes it’s hard to be a woman.
Why does this happen? We thought you’d never ask. You can read the full report here but an article in the Atlantic goes through the report in specific detail and it isn’t a pretty picture. There is a hypothesis as to why men get tenure faster than women though and it’s basically about gender roles for women. (Who would have imagined it?!)
Female professors were more likely to have a spouse or partner with a doctoral degree, 54.7 percent to men’s 30.9 percent. Their partners were also more likely to work in academe, 49.6 percent to 36.3 percent.
“I have a theory about this,” said Tara Nummedal, an associate professor of history at Brown University. “It seems pretty clear that smart women are going to find men who are engaged, but I just don’t see that it works the other way.” She added that a female professor with a stay-at-home spouse is quite rare, but often sees men with stay-at-home wives, allowing them to fully commit themselves to their professions.
When Nummedal says women find men who are “engaged”–what she means is, that women with advanced degrees tend to marry men with careers and interests of their own that are not sacrificed for marriage. She goes further by saying:
“When we look at these kinds of issues, whether it is the wage gap or child care, it becomes increasingly clear that there is a fundamental problem with the professional workplace, which is still best structured for single males, or males with wives who support their careers.”
That may seem a hard conclusion but it is likely one that has women readers agreeing, and it’s well worth reading the entire article yourself. In an era where the number of substantive comments on blogs is way down, this article has almost 194 comments barely 48 hours after posting. They’re worth reading too.
It is an intriguing area. We spend much of our work time looking at bias and how to mitigate or minimize it. Yet, it’s always present. This example of gender bias is something you can only “see” in hindsight as we look back at average progression through the tenure process. But it is a bias likely “felt” by women faculty very, very regularly. As we are working cases, preparing witnesses, and hearing stories from parties–the importance of perspective is paramount. Just because we can’t “see it” doesn’t mean it isn’t there. Bias is all around us and it works to make us decide differently how justice will work depending on whether you are like me or not like me. The task for effective litigation advocacy is to figure out how to make the client as much “like” the juror as possible through the use of universal values that often show more about who we are than descriptors like skin color, age, religion, sexual orientation, or gender.
Robert B. Townsend (2012). What Makes a Successful Academic Career in History? A Field Report from the Higher Ranks. Perspectives on History. (December)
Surely we are not talking about the same person!
Many of us have had the experience of having a totally different sense of an individual than a friend describes. And we all view ourselves differently (better and worse) than others see us. How can that happen? Well, often it’s more about us than it is about them!
Researchers in Germany looked at whether liking or not liking a public figure was related to how research participants would describe the public figure’s personality. They selected public figures well-known in Germany (among them: Heidi Klum, Angelina Jolie, the Pope, and Madonna, in the event you are interested). They asked 209 research participants if they “liked” the individual public figure and then asked the participants to rate the public figures using 30 different adjectives that either did not describe or did describe the public figure.
The participants used a Likert rating scale ranging from “doesn’t fit at all” to “fits perfectly” to indicate how much they believed the public figure would be described by the individual adjectives. If they were unfamiliar with the public figure, they were instructed to skip the ratings. They were also asked how familiar they believed they were with the public figure and how much they liked the public figure.
The researchers found two different patterns (one of which you can probably guess):
When research participants liked the public figure, their individual descriptions of the personality of the public figure were quite similar. What mattered was not who the public figure was–but whether the research participants liked them. The tendency was for a generally positive adjective description when the research participants liked the public person.
However, the same agreement was not found when individual research participants did not like the public figure. That is, when the raters did not like the person they were evaluating–they did not describe them in a consistently negative fashion but rather in a more idiosyncratic way. The researchers point to past research showing a similar pattern in negative reactivity.
In other words, if you have a positive sense of an individual, your rating tends to be globally positive. If you have a negative sense of someone, your rating will be negative but in ways that are a reflection of yourself. We all love them the same way, but we dislike them for various (idiosyncratic and personal) reasons.
It’s another reason to prepare witnesses to communicate shared universal values to the jury. We are more alike than we are different but we also often leap to judgment based on perceived dissimilarity. Help your witness present themselves as similar to the jurors (based on shared values and life experiences) and the individual jurors are more likely to view your witness positively as a jury group.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***
Leising, D., Ostrovski, O., & Zimmermann, J. (2012). “Are We Talking About the Same Person Here?”: Interrater Agreement in Judgments of Personality Varies Dramatically With How Much the Perceivers Like the Targets Social Psychological and Personality Science DOI: 10.1177/1948550612462414
The evidence is mounting: The brains of liberals and conservatives differ
We’ve written before about brain differences between liberals and conservatives. And we’ve cautioned against using assessments of liberal or conservative orientation in isolation as a selection/deselection tool for your case. But the evidence is growing that there may be some ‘hard-wiring’ differences at play in your brain based on whether you identify as liberal or conservative.
The ProCon website just added two studies to their webpage on differences between liberal and conservative brains so that now 12 different, peer-reviewed studies are highlighted. ProCon.org lists their mission statement as follows:
“Promoting critical thinking, education, and informed citizenship by presenting controversial issues in a straightforward, nonpartisan, primarily pro-con format.”
They describe themselves as non-partisan and as listing issues for the electorate to consider in the election season. They describe the page this way:
“In the 12 peer-reviewed scientific studies summarized below, researchers found that liberals and conservatives have different brain structures, different physiological responses to stimuli, and activate different neural mechanisms when confronted with similar situations. Each entry below references the source document and a PDF of each study has been included.”
As we look at the journals in which the studies are published–we see a variety of disciplines represented and well-regarded professional publications. Many of the researchers names have become familiar to us. Individually, the studies are intriguing. Collectively? Frankly, we aren’t sure what it means. Maybe it’s “more intriguing”.
From a litigation advocacy perspective, it’s an interesting page to peruse and ponder. We tend to find, however, that blanket statements like “liberals are like this” or “conservatives are like this” often are wrong.
It does say something about why it’s so hard for us to talk to each other and why it’s critically important you not inadvertently press either a liberal or conservative hot button issue as you present yourself or your case. That’s one reason we really push the idea of universal values that transcend political orientation and liberal versus conservative belief systems.
But this level of repeated differences in the brains of liberals and conservatives has us thinking and we like to think. It’s part of why we like to blog. So we’ll think on this one and if we come up with a way to use this, we may blog about it.
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