Unconscious Bias Training – proceed with caution

Brown-Progress-graphicDefinition – Unconscious bias refers to the biases we have of which we are not in conscious control. These biases occur automatically, triggered by our brain making quick judgments and assessments of people and situations based on our background, cultural environment and our experiences.

Over the last few years there has been a marked increase in discussions about, and an industry developed around, the concept of “unconscious bias”.  Also referred to as “Implicit bias”, as evident from the definition above, the concept is that our brains form fast judgments and assessments without us being consciously aware that the judgments and assessments are being made.

The discussion around this subject has moved from the realm of social psychological theory, and grabbed hold in the mainstream of organizational Human Resources Departments, and within government and policy development agencies, including the Ontario Human Rights Commission.

These organizations and government agencies have set out to purportedly raise awareness in their respective constituents of the existence of unconscious bias, to train people to identify their own unconscious bias, and then train to correct these biases or avoid acting on them if they are deemed unfair or discriminatory (Using the Implicit Bias Test – “IAT”).

A simple Google search on the terms “unconscious bias” or “implicit bias” confirms a large industry of diversity consultants and trainers offering services to employers in these fields.

Google, Facebook, and Microsoft have all embarked on high profile training regimes to identify and stamp out socially negative unconscious biases in their workforce.

The Canadian federal Judicial Advisory Committees (the government appointed committees that vet and recommend candidates for judicial appointments in Canada) now require that all JAC members will receive training on diversity, unconscious bias, and assessment of merit.”

On December 2, 2016, The Law Society of Upper Canada, the organization that governs the law profession in Ontario, adopted a report entitled  Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions – November 2016.  In order to address what the Report identified as widespread racism in the legal profession and the Law Society organization itself, the Law Society undertook to provide unconscious bias training to law firms, lawyers, and other members of the legal profession under the section of the report entitled “Educating for Change”.

I have recently received inquiries from employer clients indicating that they have become aware of organizations undergoing unconscious bias training, and asking if there was a legal requirement to provide this type of training

The nobility of the exercise is clear.  However, there is no legal requirement and there is a body of academic research that indicates that the efficacy of the training may in fact be less than certain, and possibly harmful in exacerbating division.

The Law on Bias Training

There is no specific legal requirement that Ontario employers develop any policies or undertake any form of anti-discrimination, racism, or unconscious bias training.

Bill 168 introduced the requirement that Ontario employers maintain workplaces safe from violence and harassment.  Harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.  Workplace harassment can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating, or
demeaning to a worker or group of workers. It can also include behaviour that intimidates, isolates, bullies, or even discriminates against the targeted individuals. This necessarily includes an obligation to maintain the workplace free from harassment related to discrimination and/or racism.

Further, under the Ontario Human Rights Code, employers are responsible for any discriminatory act undertaken by any of their employees as against another person on the basis of a protected ground in the provision of services or employment (whether the act was intentional or not).  Discrimination can include harassment, which is defined as comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying behaviour that is based on one or more Code grounds.”

In its attempt to fulfill its mandate of promoting the Code, and developing policies on how the Code ought to be interpreted, the Ontario Human Rights Commission has set out its opinion that in some cases racist “beliefs are unconsciously maintained by individuals and have become deeply embedded in systems and institutions that have evolved over time. Further, the Commission has the view that unconscious bias exists, and that training to identify bias and to discourage employees from acting on those biases is consistent with promoting a progressive workplace and a progressive interpretation of human rights laws.

In its 2005 publication “Policy and guidelines on racism and racial discrimination”, the Ontario Human Rights Commission stated as follows:

“Consider this:

In discussing racism, it is necessary to consider the unearned privileges, i.e. benefits, advantages, access and/or opportunities that exist for members of the dominant group in society or in a given context….P.13.”

Given that the policies are intended to be (and generally are) followed by the Tribunal and the courts, it is evident that identification and action on unconscious bias have been targeted by the government of Ontario and the Human Rights Commission as valid endeavours and hallmarks of progressive employers generally.

What Is the Scientific Opinion on the IAT and Unconscious Bias?

However, a canvass of scientific literature on unconscious bias and related training programs reveals not only that the scientific consensus may be unclear, but in fact, that the consensus is that unconscious bias cannot be identified in testing, and that any program designed to identify and then change outcomes with respect to unconscious bias can actually exacerbate existing bias.

Clinical psychologists including in a recent article in the Canadian HR Reporter “‘Equity’ fatal trap for human resources – Is unconscious bias training ‘an Orwellian nightmare, unsubstantiated by science?” have opined that the testing to identify unconscious bias is fundamentally flawed “and very difficult to distinguish from a familiarity bias or in-group preference“, and that “there is no evidence unconscious bias training programs actually reduce such bias, and some evidence indicates the problem is actually worsened.

(equity-fatal-trap-for-human-resources – pdf link to article).

In a January 2017 article in the Chronicle of Higher Education entitled “Can We Really Measure Implicit Bias? Maybe Not”, the author cited the following:

“Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures.  They discovered two things: One is that the correlation between implicit bias and discriminatory behaviour appears weaker than previously thought.  They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behaviour.  These findings, they write, produce a challenge for this area of research.”

“scientists don’t know how to measure implicit bias with any confidence and that they shouldn’t pretend otherwise.”

More importantly, apparently one (1) of the three (3) authors of the original research and design of the IAT has now publicly disavowed the research results and methodology.

In New York Magazine – Science of Us, Jesse Singal published “Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job”

“Finally, there are hints which suggest that the race IAT could directly diminish the quality of certain intergroup interactions.  In a 2012 study published in Psychological Science, for example, the psychologist Jacquie Vorauer had a bunch of white Canadians complete a work task with an aboriginal partner.  Prior to doing so, some of the participants took an IAT pertaining to aboriginal people, some took a non-race IAT, and some were asked for their explicit feelings about the group.  Aboriginals in the race-IAT group subsequently reported feeling less valued by their white partners as compared to aboriginals in all of the other groups.  So while IAT proponents have suggested it could be used to improve intergroup relations, writes Vorauer, ‘if completing the IAT enhances caution and inhibition, reduces self-efficacy, or primes categorical thinking, the test may instead have negative effects.’

In short, unconscious bias training may make your workplace more biased.

It has increasingly become apparent that scientific consensus in this area is moving away from unconscious bias as an area where behaviour can be identified and modified, and towards a finding that unconscious bias training may cause more harm than good.

As employers rush headlong into the unconscious bias training world, encouraged forward by the industry and the recommendations of the Ontario Human Rights Commission, I would caution employers to review the literature on the subject, and the experiences of other employers, understanding that there is no legal requirement to undertake these efforts.

As Singal stated “Unless and until new research is published that can effectively address the countless issues with the implicit association test, it might be time for social psychologists interested in redressing racial inequality to reexamine their decision to devote so much time and energy to this one instrument.  So, contra Banaji (one of the authors and proponents of the IAT), scrutinizing the IAT and holding it to the same standards as any other psychological instrument isn’t a sign that someone doesn’t take racism seriously:  It’s exactly the opposite.”

While the objective of a diverse and inclusive organization is a noble one, it is apparent that employers may wish to explore other (and perhaps more effective) means to achieve the objective and to signify to the marketplace your organization’s embrace of these values.

Curious about the test? – you can take it here (with caution):

Jared Brown – Lead Counsel

 

 

 

Bill C-16 – What’s the Big Deal?

anything that forces someone to express opinions that are not their own is a “penalty that is totalitarian and as such alien to the tradition of free nations like Canada even for the repression of the most serious crimes.” National Bank of Canada v. Retail Clerks’ International Union et al. (1984) SCC; Slaight Communications Inc. v. Davidson (1989) SCC.

With that statement, the Supreme Court of Canada set down the basic principle in Canada, that any government action or legislation which has the effect of forcing its citizens to mouth thoughts or opinions that are not their own, is unconstitutional and an unreasonable infringement on section 2 Freedom of Expression in the Charter of Rights and Freedoms.  This principle was reaffirmed by the same court in the case of Slaight Communications.

BILL C-16

There has been much in the news lately regarding federal Bill C-16 which passed the house of commons and is now in the Senate.  The bill has brought with it a fair amount of media attention likely on account of its subject matter, but also, the implications of the bill.

Proponents of the bill identify that it is a much needed progressive development in the law to protect historically marginalized groups.  There are also critics of the bill.  This blog post will examine one of the more intriguing issues; namely, that the bill on its face introduces government mandated compelled speech into federal legislation.

Its appropriate to examine Bill C-16 in greater detail to ensure that it is in compliance with Canadian constitutional principles, and consistent with Canadian traditions of free expression.

The Minister of Justice has summarized Bill C-16 as follows:

“This enactment amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination.

The enactment also amends the Criminal Code to extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.”

Adding the concepts of gender identity and gender expression to the Canadian Human Rights Act (CHRA) and the Hate speech provisions of the Criminal Code proposed by the enactment appears fairly innocuous and perhaps commendable.

A deeper analysis of the concepts and the origins of the legislation, however, make clear that this legislation may be an unprecedented infringement on freedom of expression, and the principle that Canadians ought to be free from having to mouth opinions and ideologies that are not their own.

HOW DOES BILL C-16 GET US TO COMPELLED SPEECH?

The origins of Bill C-16 can be found in identical legislation that was introduced in certain Provinces including Ontario in or around 2012.  The Ontario Human Rights Code (the “Code”) was amended in an identical fashion and with the same words (to include gender identity and gender expression as protected grounds from discrimination).

In Ontario, the human rights regime is comprised of the Code, the Ontario Human Rights Commission (the “OHRC”), and the Ontario Human Rights Tribunal (the “OHRT”).

The Code is the legislation that creates the regime and the law.

The OHRC is the government agency charged with the administration and enforcement of the Code.

The OHRT is the government tribunal charged with determining if there has been a breach of the Code and in fashioning remedies for any breach.

The OHRC and OHRT are accountable to the legislature of Ontario.

In the event there is a breach of the Code, a complainant can commence a complaint before the Tribunal to have the complaint adjudicated.

Alternatively, the OHRC can commence a complaint before the Tribunal.

The OHRC can also intervene in any existing complaint before the Tribunal on behalf of any complainant.

The OHRC can further conduct its own inquiries into real or purported breaches of the Code and issue recommendations.

As part of its mandate to promote Human Rights and to promote awareness of the Code, the OHRC develops legally binding policies.

Section 30 of the Ontario Human Rights Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code. They represent the OHRC’s interpretation of the Code at the time of publication. Also, they advance a progressive understanding of the rights set out in the Code.

Section 45.5 of the Code states that the OHRT may consider policies approved by the OHRC in a human rights proceeding before the OHRT. Where a party or an intervener in a proceeding requests it, the OHRT shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a human rights application, parties and interveners are encouraged to bring the policy to the OHRT’s attention for consideration.

Section 45.6 of the Code states that if a final decision or order of the OHRT is not consistent with an OHRC policy, in a case where the OHRC was either a party or an intervener, the OHRC may apply to the OHRT to have the OHRT state a case to the Divisional Court to address this inconsistency.

OHRC policies are subject to decisions of the Superior Courts interpreting the Code. OHRC policies have been given great deference by the courts and the OHRT, applied to the facts of the case before the court or the OHRT, and quoted in the decisions of these bodies.

The Canada Department of Justice published a review of the proposed Bill C-16 legislation (linked to an archived version as the original link was deactivated recently) and in doing so has confirmed that:

Q and A on Gender Identity and Gender Expression

  1. Will “gender identity” and “gender expression” be defined in the Bill?
  2. In order to ensure that the law would be as inclusive as possible, the terms “gender identity” and “gender expression” are not defined in the Bill. With very few exceptions, grounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.

Definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission, for example. The Commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act.

And with that statement of intent from the Department of Justice we see that the federal Human Rights regime will mirror that found at the provincial level including the policies.

The OHRC has produced a policy on gender identity and expression and what constitutes harassment and discrimination, including “refusing to refer to a person by their self-identified name and proper personal pronoun”.

Thereafter, the OHRC clarified its policy by creating a Question and Answer on gender identity and gender expression which seeks to define these terms, and to set out that the refusal of a person to use the chosen/personal/preferred pronoun, or deliberately misgendering, will likely be discrimination.

What this means is that if you encounter a person in a sphere of human activity covered by the Code, and you address that person by a pronoun that is not the chosen/personal/or preferred pronoun of that person, that your action can constitute discrimination.

Further, in the event that your personal or religious beliefs do not recognize genders beyond simply male and female (ie. does not recognize non-binary, gender neutral, or other identities), you must still utilize the non-binary, gender neutral, or other pronouns required by non-binary or gender neutral persons, lest you be found to be discriminatory.

It is the OHRC policy requirement that persons must use the pronouns required by the portion of transgendered individuals making that demand that constitutes compelled speech.

Persons not wishing to use those pronouns (or any pronouns for that matter), or not able to use those pronouns as offending their deeply held beliefs, or their faith and religion, are afforded no ability to abstain.  In short, the OHRC requires that you use the words required by the proponents of Bill C-16.

WHAT’S THE BIG DEAL? – WHAT IF I DON’T USE THE PRONOUNS?

Some might perceive the compelled speech requirements inherent in the Code, and Bill C-16 as minor, particularly given the widely held opinion that a failure to follow the compelled speech stipulations will not result in serious criminal sanction.

This opinion may very well be correct, but not because the legislation lacks the ability to bring forward serious criminal sanction.  In fact, breaches of Human Rights Tribunal orders can and have (at the federal level) resulted in imprisonment.  Further, the Hate Speech provisions of the Criminal Code can result in increased sentences for those found guilty.

Focusing on the Human Rights Tribunals, and particularly the OHRT, the path to prison is quite straight-forward.

The OHRT can issue both monetary and non-monetary orders.  Monetary orders are generally restricted to general damages to a complainant.  Non-monetary orders can be anything determined by the OHRT as appropriate in the circumstances including public interest remedies.

Examples of non-monetary orders, include, but are not limited to:

– requirements to communicate or publish an apology or a publication of the facts of the case and the resulting order;

-non-defamation or gag orders (to refrain from making further offending statements);

-non-defamation publication bans (to refrain from printing further offending statements);

– orders to undertake sensitivity or anti-bias training.

While monetary orders can result in imprisonment, the path is somewhat less direct and generally related to a failure to abide by some other court process in the context of a complainant’s efforts to enforce a monetary award (contempt of a garnishment, examination in aid of execution, or writ of execution process).

With respect to non-monetary orders the path to prison is considerably more straight-forward and generally as follows:

Section 19 of the Statutory Powers Procedure Act (Ontario) (SPPA) states that an order of the OHRT is in fact an order of the Superior Court.

Section 13 of the SPPA states that the OHRT can pursue a breach of its own orders by pursuing an order for contempt before the Divisional Court (Superior Court).

Rule 60.11(5) of the Rules of Civil Procedure (Ontario) confirms that where the court finds a person in contempt, they can order imprisonment for an indefinite period, in addition to fines and other remedies.  Further a judge can issue a warrant for the arrest of any person against whom a contempt order is sought.

The Superior Court does resort to imprisonment to compel compliance with non-monetary orders.  There are numerous cases where contempt of a non-monetary order resulted in imprisonment with many as recent as 2013.

The same mechanisms and procedures can be found at the federal level and they have in fact resulted in the imprisonment of persons who breached the orders of Human Rights Tribunals in other provinces and federally.

Now most persons faced with this ominous path to prison would likely comply with the orders to avoid prison.  However, if an individual deliberately chose not to use the mandated pronouns and then elects to breach a resulting non-monetary order of the OHRT, that person could find themself in prison for that position.

The likelihood that contempt of a Tribunal order will result in imprisonment, remains extremely low.  The risk of this outcome is dependent to a large extent on the benevolence of the public servants that staff the Human Rights Commissions and Tribunals, as well as the disposition of the justices of the Divisional Court (or the Federal Court).  If the Commissions and Tribunals wish to pursue the policies and the requirement for compelled speech, and the Divisional Court/Federal Court find a clear case of contempt of the underlying Tribunal order, an order for committal could result.

There is no legal or procedural barrier to a prison term, and in fact, the law and procedures are written in such a way as to make this entirely possible.

IS THERE SUCH A THING AS “VALID” COMPELLED SPEECH?

In very narrow and restricted situations, the courts have allowed legislation that is in the nature of compelled speech.  However, these exceptions are extremely few, and have been restricted primarily to the commercial advertising realm including mandatory health warnings on cigarette packaging, and the requirement that persons applying for Canadian citizenship must pledge an oath to the Queen.  The Supreme Court found that mandatory health warnings on cigarette packaging are prima facie unconstitutional as offending section 2(b) Charter rights with respect to freedom of expression, however, the court found the offending compelled speech did not prevent the companies from expressing their own opinions on their packaging and was saved by section 1 of the Charter, as the court stated that the warnings were demonstrably effective.  With respect to the oath to the Queen, the courts found that while it incidentally affected freedom of expression by compelling speech, it did not extinguish a person’s right and opportunity to publicly disavow the message conveyed by the oath and therefore it was not unconstitutional.

The Supreme Court of Canada stated in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 279-280.

“If a law does not really deprive one of the ability to speak one’s mind or does not effectively associate one with a message with which one disagrees, it is difficult to see how one’s right to pursue truth, participate in the community, or fulfil oneself is denied.”

The questions to be asked with respect to C-16 and the mandatory use of pronouns remain:

1) is there an opportunity to publicly disavow the usage of pronouns and the underlying gender theories in the legislation?

2) Does C-16 deprive one of the ability to speak one’s mind or does it effectively associate one with a message with which one disagrees?

If the answers to question 1 is “no”, and the answer to question 2 is “yes”, then C-16 would appear to be unconstitutional.

CONCLUSION

In summary:

  • Bill C-16 will mandate the use of certain language enforceable by the government;
  • The mandated language may not be consistent with the opinions and beliefs of all persons in Canadian society;
  • It is not clear that one can publicly disavow the mandated language; and,
  • With the passing of Bill C-16, a failure to use the mandated language can result in the power of the state being brought to bear on you, resulting in punishments up to and including imprisonment.

Given that the Supreme Court of Canada has found compelled speech to be a “penalty that is totalitarian and as such alien to the tradition of free nations like Canada even for the repression of the most serious crimes”, it might be appropriate to examine Bill C-16 in greater detail to ensure that it remains consistent with Canadian constitutional principles and Canadian traditions of free expression.

D. Jared Brown – Counsel