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Playing the race card: When it works and why it doesn’t
One of our most often accessed posts is in our Simple Jury Persuasion series and titled When to Talk about Race and When to Stay Silent. In the year following that post, two researchers examined when making race salient was useful for defense attorneys.
The article, with authors residing in and research done in the U.S., was published in a British journal and so they spell defense with a c instead of an s. To avoid confusion, and questions as to our proof-reading, we’ll spell it our way except in the actual citation below the post.
The researchers recruited 151 White college students and then had them read doctored trial transcripts. The transcripts varied based upon 1) Defendant race (either Black or White) and, 2) whether the Defense attorney made statements regarding race. In other words, the students were randomly given one of four possible scenarios: Black Defendant with race made salient by the Defense attorney; Black Defendant with no racially salient statements made by the Defense attorney; White Defendant with race made salient by the Defense attorney; or a White Defendant with no racially salient statements made by the Defense attorney.
The (12 page) trial transcript described a trial wherein a Defendant had been accused of simple assault after starting a bar fight following watching a football game on the bar TV where his favored team lost. The crime was interracial–that is, if the Defendant was Black, the victim was White and if the Defendant was White, the victim was Black. The Defendant was described as an out-of-towner who was traveling on business. The injuries to the victim were described as a “broken nose and a black eye”. In conditions where race was made salient by the Defense attorney, the following statements (from opening and closing statements) were included in the trial transcript:
“The defendant did what any (Black/White) man in this situation would do.”
and
“The only reason the Defendant, and not the supposed victim, is being charged with this crime is because the Defendant is (Black/White) and the victim is (White/Black).”
In those conditions where race was not made salient, the preceding statements were not included in the trial transcript. The research participants rated the guilt of the Defendant (on an 11-point scale ranging from definitely guilty to definitely not guilty) and those who found the Defendant guilty were asked to sentence the Defendant to a prison sentence ranging from 1 to 60 months in prison. They were also asked to rate the influence of Defense and Prosecution attorney statements and the race of the Defendant. (A previous mass testing session gave the researchers access to all participant scores on the Old Fashioned Racism Scale–see page 65 of the linked pdf for the scale questions.)
What the researchers found is intuitively compatible with our reading of the literature on what is now called “modern racism”.
In short, when the Defendant was Black, the racially salient statements of the Defense attorney helped with some White jurors.
Deviating from previous studies of the relationship of prejudice and the impact of making race salient, the difference in favor of the Black Defendant was not the same across all White participants. In previous studies, the use of racially salient statements lowered the proportion of White respondents finding the Black Defendant guilty across the board. That was not the case in this study.
Participants higher in prejudice/racial bias were more likely to find the Black Defendant guilty and more likely to find the White Defendant innocent.
The researchers say that it is important to consider that the research on this effect has been conducted using interracial crimes and it may not effect White jurors when both the Defendant and the victim are Black. They also discuss previous research that showed racially salient statements result in higher levels of cognitive processing among jurors. Thus, some jurors may focus more on the evidence and that may result in more Black Defendants being found guilty. Other jurors may be led by the increased cognitive processing to an over-emphasis on race and thus, the researchers say, more prejudiced jurors could find Black Defendants guilty.
These are nuanced findings and those very nuances are part of why it is so important to read original research sources and do pretrial research to see if the specific facts of your case are strengthened by making race salient or not. Also, we wouldn’t recommend the statements used in this research for any prosecutor or defense counsel. For research it’s fine, but not for the real world.
Despite Americans having elected (and re-elected) a biracial President, the impact of race in your specific case, with your specific Defendant or Plaintiff, and with your specific case facts and venue is anything but certain. For us, this is a both fascinating and very sad area of our work. We’ll keep reading the research. You keep coming back to check it out!
Bucolo, D., & Cohn, E. (2010). Playing the race card: Making race salient in defence opening and closing statements Legal and Criminological Psychology, 15 (2), 293-303 DOI: 10.1348/135532508X400824
Attractiveness and being fired for poor performance
Who gets fired? The attractive, moderately attractive, or unattractive employee? Do we even need to ask this? Of course, no one wants to think we are that overtly biased as we make decisions– but we are. We hire and fire based on likability and how attractive someone is often influences how much we like them.
Being physically attractive helps you get the job, the good ratings and the promotion–so might it also protect you from “bad stuff” that can happen at work? This was the question researchers set out to explore. The researchers designed an overall poor performance evaluation and then attached three different photographs to the poor performance review. One of the photos was a very attractive woman, one was moderately attractive, and one was unattractive.
We know you want to see the pictures but they were not provided. The researchers did pilot studies where the task was to rate the attractiveness of the various photographs and assigned “very attractive”, “moderately attractive” and “unattractive” labels to those photographs identified via pilot study participants.
179 undergraduate students (106 female and 73 male) between 18 and 34 years of age participated in the study. Almost 3/4 of the participants were 18 or 19 years old. Thirty-six had been managers, 13 had terminated employees, and 24 had been terminated at some point themselves.
The participants were given a task of making decisions as the “new manager at Central Hospital”. Among their tasks was making recommendations based on a performance evaluation of a pharmacy technician (with the photo attached). The pharmacy manager was asking for assistance from the new hospital manager on whether to pursue termination. The employee had received an oral and written warning for her poor performance during her 3 month probationary period. After the warning letter, the participant saw a job description and a photograph of the employee badge (showing one of three women).
Here’s what the researchers found:
There was a slight tendency for the unattractive employee to be terminated more often than either the moderately attractive or very attractive employee.
The research participants liked the unattractive employee less than they liked the very attractive or moderately attractive employees. Participants were more likely to terminate the employee they didn’t like–hence the unattractive employee was more likely to be terminated.
Unattractive employees were slightly more likely to be seen as internally responsible for poor work performance. That is, the researchers say, the participant-”managers” were more likely to blame her for having performed poorly than they were to blame the more attractive employees.
The researchers believe attractiveness was unlikely to “protect” the good-looking employees from termination. However, there was a bias toward terminating the unattractive employee. The employees who were liked less (e.g., the unattractive employees) were judged to be more personally responsible for their poor performance and this led to their termination.
We’ve talked about the importance of paying attention to bias a lot on this blog and even about the importance of paying attention to differential hiring of potential employees by ethnicity. Here’s another wrinkle in the fabric that makes up management tasks when it comes to the potential for discrimination.
Pay attention to whether you would treat an unattractive employee more harshly than you would treat an attractive employee when it comes to termination decisions. We’re all human, after all.
Commisso, M.; Finkelstein, L. 2012 Physical attractiveness bias in employee termination. Journal of Applied Social Psychology.
“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
Excuse me potential juror: Is your brain red or blue?
Brain researchers are increasingly focused on whether our brains are red or blue–as in Democrat or Republican. And there appears to actually be something to it. But it reminds me of that Dr. Seuss book One Fish Two Fish Red Fish Blue Fish. I confess the charm of Dr. Seuss wore off for me a great deal faster than it did for my kids… Even after reading his books aloud over and over and over and over again to my kids they still loved them. Once they began to read, I had to listen to them read them aloud over and over and over and over again. Of course, my antipathy toward Dr. Seuss was nothing compared to my feelings about a giant purple dinosaur whose name will not be spoken here. Suffice to say, his affections were most assuredly not returned by me. I couldn’t even listen to the YouTube video of that song without shuddering and I shut it off after the first line.
But I digress. In this study (freely accessible online thanks to PLoSONE) researchers look at how having either a Democrat or Republican political affiliation may change how your brain functions during risky decision-making. It is also important to note that these researchers use the descriptors Democrat/Liberal and Republican/Conservative interchangeably. They believe that this idea is valid and point to a 1998 article to explain:
“While party registration is not a perfect proxy for ideology, a realignment that started in the 1970s has caused the two to become increasingly correlated over the past 40 years. Political polarization at both the mass and elite levels have created a period where ideology and partisanship are substantially overlapping concepts. This trend has been even stronger in California (where the participants in this study resided) than in other states.”
Their use of a Democrat = Liberal and Republican = Conservative assumption is further supported by a more recent 2008 article:
“However, our evidence indicates that since the 1970s, ideological polarization has increased dramatically among the mass public in the United States as well as among political elites. There are now large differences in outlook between Democrats and Republicans, between red state voters and blue state voters, and between religious voters and secular voters. These divisions are not confined to a small minority of activists—they involve a large segment of the public and the deepest divisions are found among the most interested, informed, and active citizens. Moreover, contrary to Fiorina’s suggestion that polarization turns off voters and depresses turnout, our evidence indicates that polarization energizes the electorate and stimulates political participation.”
The current researchers cite prior research on what the brains of liberals and conservatives look like structurally. Using a “simple gambling game”, prior research found that “liberals and conservatives have significantly different brain structure, with liberals showing increased gray matter volume in the anterior cingulate cortex, and conservatives showing increased gray matter volume in the in the amygdala”.
For the current research, the researchers looked at what areas of the brain were used during those gambling tasks and found a difference in what parts of the brain were activated during those decisions. When considering risky decisions:
Democrats relied on the left insula (associated with social awareness and self awareness).
Republicans relied on the right amygdala (associated with the fight or flight system).
What was particularly surprising is that looking at the brain activity alone could show with 82.9% accuracy whether a person had voted Democrat or Republican. (In comparison, a model using the political affiliation of parents to predict a child’s political affiliation has only 69.5% accuracy!) The researchers believe that this information shows that Democrats and Republicans use their brains differently. They also believe that this research may result in new research on voter behavior that can help us understand better how people think.
From a litigation advocacy perspective, this is yet another finding that makes us wish for added functionality to Google Glass so we could see the “color” of potential juror brains. On the other hand, we sure would want to back up this assumption that political ideation equates to liberal vs. conservative attitudes with pretrial research on a pretty large scale. The size of the researcher’s sample for this study (N = 82; 35 males, 47 females) leaves much to be desired. Even the researchers wish they could have inquired more closely:
“Ideally, we would have also directly inquired about the individuals’ ideological self-identification and attitudes about a set of political issues. However, we were not able to re-contact the participants.”
So it isn’t quite perfect. But it’s a start. So, once having determined that Democrat = Liberal and Republican = Conservative, we have to determine whether it matters. And what the role might be in a particular case of such social or political alignment. In our experience, it has more salience in personal injury cases or cases involving ethnic minorities than it does on complex commercial or intellectual property cases. But ultimately, research on understanding jurors is interesting when it is descriptive, but only worthwhile when it becomes predictive of verdicts.
Schreiber D, Fonzo G, Simmons AN, Dawes CT, Flagan T, Fowler JH, & Paulus MP (2013). Red brain, blue brain: Evaluative processes differ in Democrats and Republicans. PLoS ONE, 8 (2) PMID: 23418419
“It was ‘a man’s work’ and I just didn’t like working with those incompetent women….”
Research shows, even though it’s now 2013, that stereotypes of women as passive, not ambitious, and not energetic continue to abound. Researchers wondered whether the proportion of women in a mixed-gender group doing a male-stereotyped task would affect gender-related evaluations of the group process.
Researchers recruited 110 students (71 women, 39 men) enrolled in a graduate level introductory management course. The average age of the participants was 26.4 years and 52% of them were White. The 110 participants were divided into 22 different five-person groups. The number of women was varied in the groups: 2 of the groups had two women among the 5 workers, 13 groups had 3 women, and 7 groups had 4 out of 5 female workers. They were assigned a group task to “build a replica of a complex model made of Legos”. They were given 30 minutes to plan a strategy and then 30 minutes to build their replica. Once they believed their replica was complete, they presented it to the judges. If it was not accurate, it was returned to them without feedback on flaws.
Following successful completion of the replica, they filled out questionnaire about their experience working with the group. Ten weeks later, they were asked one question via a web-based questionnaire: “To what extent would you be willing to work with your Legoperson team on a graded group project?”. And here is what the researchers found:
The proportion of women in the group (whether 2 members, three members, or four members in the 5 person group) had no relation to performance on building the Lego replica.
In groups that had higher proportions of female members, group members rated each other as having contributed LESS to the task completion. (It did not matter if the rater was male or female. The more women in the group, the lower the level of individual contributions was perceived to be to task completion.)
In groups that had higher proportions of female members, group members also rated the group itself as less effective. (Again, it did not matter if the rater was male or female. The higher the proportion of women in the group, the less effective the group was rated.)
Finally, in the follow-up question task (to which 65% responded) groups with higher proportions of women were less willing to work together again. (And again, it didn’t matter if the rater was male or female. If there were more women in the group, members didn’t want to work together again.)
Let’s say that again. No matter if you were a male group member or a female group member–belonging to a group with a higher proportion of women and being assigned a male-stereotyped task meant you thought more negatively of individual group members, that you had a negative sense of group effectiveness, and that you were less willing to work with the group again. And all this when there was no difference in the actual objective effectiveness of the group in terms of task completion: all groups performed equally well, but the groups with more women felt less good about it.
It’s a disturbing study. Men denigrate women. Women denigrate women. The researchers suggest that perhaps it is because gender composition has impact on how the group functions so that even high-functioning teams with higher proportions of women may not wish to work together again.
Or, it could be that men and women members of groups with predominantly more women are evaluated negatively “by association”. That is, they are in a group largely composed of women and so are all negatively evaluated by each other. Perhaps, as the researchers say, it’s a case of “catching stigma” from all those women.
And all this with no actual difference in objective outcome. It’s all about subjectivity. How do I feel about this group and perceive this group’s effectiveness? It’s sobering to consider the impact of gender composition on work groups, special project groups, and on juries.
While more research is obviously essential, it highlights the importance of educating jurors (and work groups) on what is needed for successful task completion. The jury in the Rod Blagojevich trial was 11 women and 1 man and that jury was widely lauded for effective function. Given this research, it would be curious how the individual members of that jury would rate their group function, and whether they would like to work together again.
West, T., Heilman, M., Gullett, L., Moss-Racusin, C., & Magee, J. (2012). Building blocks of bias: Gender composition predicts male and female group members’ evaluations of each other and the group Journal of Experimental Social Psychology, 48 (5), 1209-1212 DOI: 10.1016/j.jesp.2012.04.012
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