Bias is a buzzword we hear often in today’s world, but for many it is difficult to understand or accept. Many approach the topic as though the goal is to "empty our minds" of bias (as if that were possible). However, the less we focus on and are aware of bias, the harder it is to recognize, identify, and control our biases so that they do not result in unintentional harm to others through unexamined discriminatory and prejudicial actions.
Here we will define bias and look at the way unintentional bias affects our behavior as individuals, community members, HOA members, directors, managers, and attorneys. We’ll consider the ways in which bias affects our communities in the form of laws, rules, policies, and documents and the way that we enforce these community covenants. We’ll consider the role of bias in our community interactions and how unlawful prejudice and discrimination resulting from bias exposes our communities to considerable legal risk. Finally, we’ll look at several ways that we can act intentionally in order to mitigate unlawful bias in our communities and thereby reduce the risk of community damage resulting from unfair covenant enforcement, discriminatory exclusion of community members, and hurtful interactions between people in our communities.
Our modern definition of bias is synonymous with discrimination or prejudice, and we therefore tend to think of bias only in a negative way, but this is not completely accurate. We all have biases, but some are more harmful than others, and not all are negative. Merriam Webster nonetheless defines bias as a "tendency to believe that some people, ideas, etc., are better than others that usually results in treating some people unfairly." In order to identify, manage, and ultimately eliminate harmful bias, we must first understand where bias comes from and how it is shaped by our life experiences, culture, history, and societal system. Bias can show up in surprising and damaging ways in our firms and in the communities we serve. Learning how to recognize and combat bias requires an understanding of the origins of bias, which are rooted in cognition.
Bias is a subset of cognition; explicit and implicit cognition are the ways in which our brains navigate the world around us. Explicit cognition, or "slow thinking," is what we do when we sit down to thoughtfully make a decision or solve a problem. Implicit cognition, or "fast thinking," is the kind of automatic, subconscious way we engage with the world around us. Explicit cognition is what you use to figure out the answer to 387 × 41; implicit cognition is how you "just know" that 2 + 2 = 4.
Implicit cognition is key in helping us sort through the sensory information that surrounds us. Examples include detecting when one object is further away than another, orienting the source of a sound, or detecting anger in someone’s voice. Ninety-five percent of our cognition is implicit, which means that implicit cognition is very powerful. Understanding the role that implicit cognition plays in our lives is crucial to our ability to identify, manage, and combat bias.
Explicit and implicit bias are aspects of cognition. Explicit bias is the conscious belief that some people or ideas are better than others, while implicit bias is informed by a set of attitudes and stereotypes that unconsciously affect our understanding, actions, and decisions. These biases can be favorable and unfavorable and are activated involuntarily and without your awareness or control. This is different from the explicit biases you know you have and that you work to conceal (and hopefully combat) consciously. Implicit biases are less about hiding our thoughts from others, and more like our own thoughts hiding from ourselves.
The implicit associations and biases that reside in our subconscious cause us to have attitudes and feelings and make assumptions about people based on characteristics like race, ethnicity, gender, age, and appearance, among other things. These biases develop over a lifetime, beginning early through exposure to direct and indirect messages, including how media and news programming portray groups of people.
Unfortunately, implicit cognition can also be informed by harmful and inaccurate stereotypes. One of the most obvious and pervasive examples of bias is racial bias.
However, bias also occurs based on age, gender, gender expression or identity, ethnicity, sexual orientation, disability, socioeconomic status, and religion. Additional biases include anti-fat bias, attractiveness bias, height bias, bias against those with mental illnesses, and bias against those who speak English as their second language.
Biases tend to be strongest against groups with which you have the least in common and/or the least contact. However, people absolutely can be and are biased even against people in their own group. Jesse Jackson once said, "There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps…then turn around and see somebody white and feel relieved."
Everyone has implicit biases. They are pervasive and affect even those who are charged with or committed to being impartial. In fact, if you strongly identify as a fair and impartial person, that can make you more susceptible to acting on implicit biases because you are less likely to allow yourself to be aware of your biases. Put differently, the more you believe you are unbiased, the less likely you are to see your biases for what they are when they are challenged by additional information or your own "slow thinking." The fairer you believe you are, the stronger you may cling to your biases, rather than course correct.
Implicit bias has the greatest impact on quick decisions, especially those made under stress. These include assessments of competence, honesty, importance, and risk. These are the types of assessments we, as attorneys, make every day in our work.
The good news is that when we know bias is likely to be an issue—when it is front and center—we may be less likely to act on that bias than in other situations. This means that cultivating an awareness of bias is crucial in minimizing its impact in our spheres of influence.
TOOLS FOR IDENTIFYING BIAS
As we have noted, bias exists everywhere in many forms, but because of the insidious nature of the bias "blind spot," it can be extremely difficult to identify in ourselves and others. It is important that we overcompensate for our inability to identify our personal and institutional blind spots. A good launching point is using research-based tests and tools to help identify where bias exists.
When using tools to identify bias, it is also important to note that finding bias in a particular area does not equal being a person who is discriminatory or of poor character. We all have biases that are ingrained in us from birth. Learning that we are biased on the basis of race or gender does not automatically make us "bad" people. It means that we have to be mindful of our actions in order to compensate for our bias in this area.
THE HARVARD BIAS QUIZ
Social scientists have studied bias extensively1 and have come up with an easy and free series of online tests regarding individual attitudes and bias. These tests, which address bias in many different categories (e.g., race, gender, work, LGBTQ+, etc.), allow them to continue to gather data regarding individual bias and provide an opportunity for individuals to assess their own bias. The "quizzes" are part of the Implicit Association Test ("IAT") and can be found at implicit.harvard.edu.
Three of us (at Adams Stirling) took a variety of the IAT quizzes and found the results to be surprising, in that they showed measurable bias in each of the categories we tested. We found these results to be particularly remarkable given that we are currently studying bias on an intensive basis, have made it a priority to be mindful of our personal biases with regard to our professional and personal lives, and consider ourselves to be part of a protected class which experiences considerable societal bias on a regular basis. However, our heightened self-awareness, knowledge, and good intentions did not seem to eliminate our perceptions and baseline bias, as measured by the IAT.2
We encourage all of you to explore the IAT site and take some quizzes. Each takes only a few minutes to complete, and the results are both interesting and instructive. Don’t be afraid to confront your biases and to support colleagues and clients doing the same work.
A PROPOSED PROTOCOL FOR CONSIDERING BIASED COMMUNICATION
Now that we have established that we all have biases and that these biases can be difficult to identify, what can we do about it? The social media app NextDoor confronted issues of racial bias on their neighborhood boards and came up with an approach that may provide a useful starting point.
NextDoor is an "online social networking service that serves as a sort of giant chat room for individual neighborhoods."3 NextDoor features neighborhood-specific services for its members including items for sale, notifications of local events, vendor referrals, lost animals, and warnings regarding crime and safety in the community.4 It is this last section which became (and remains) the most problematic aspect of the app. In our personal experience, many NextDoor communities have devolved into a forum for finding lost dogs and expressing casual (or not so casual) racism.
NextDoor’s CEO and management team became concerned regarding the racist posts that were appearing on its app. Wanting to promote a healthy community, rather than a means of harming BIPOC individuals, and seeking to get ahead of an increasing public outcry regarding racism, NextDoor developed an algorithm to try to identify and remove racist posts.
However, merely removing offensive posts did not solve the problem. A common occurrence was posts with "racist overtones, messages that labeled Blacks and Latinos ‘suspicious’ for walking down a street, sitting in a car, talking on a cell phone, knocking on a door."5 People were posting reports of these activities in the crime and safety category, trying to keep their community safe and go along with a "see something, say something" philosophy of community interaction and care. Heated debates often broke out, with some community members calling out these posts as racist and others defending them. Dr. Eberhardt describes the outcome as one where "instead of bringing neighbors closer together, the platform exposed raw racial dynamics that generated hurt feelings, sparked hostilities, and fueled fierce online arguments."6
A more effective approach was to nip these biased posts in the bud by forcing posters to consider a few questions to make sure that the issue was really one of crime and safety and not prejudice and bias.7 The "checklist of reminders" before posting consisted of the following questions:
In the HOA context, this type of checklist serves as a method of ensuring that we enforce conduct violations, but not punish individuals for their status. Focusing on "conduct, not status" works effectively to make sure that we consistently and equally enforce the rules of the community and that there are not unintended enforcement biases which reduce our ability to enforce at all and can cause harm to the community by marginalizing people who do not deserve disparate treatment. We suggest that the "HOA Bias Reminder Checklist" look something like this:
The consequences of unchecked bias are significant and cover a broad spectrum of outcomes, from agency enforcement actions to litigation to significant discord within our communities. Agencies at both the federal and state level regulate and investigate claims of bias within community associations, and those investigations rarely end well for the association in question. Litigation is expensive and time-consuming and often creates more of a rift than the underlying biased action that gave rise to the litigation. Understanding the possible consequences biased action can have, and ensuring our clients do the same, is crucial in our role as advisors to community associations.
AGENCY ENFORCEMENT ACTIONS
HUD: Complaints involving discrimination under the federal Fair Housing Act may be handled by the U.S. Department of Housing and Urban Development (HUD). Complaints may be filed online9 using a streamlined and simple form. The online form is available in English or Spanish. Downloadable forms are available in eight other languages10 and can then be email to a HUD office. The HUD website provides many forms of assistance to people seeking to file a claim and notes that retaliation for making or participating in a complaint is illegal.
Literally, "anyone who has been or will be harmed by a discriminatory housing practice" may make a claim, and HOAs are specifically listed as entities that may have complaints lodged against them. In addition to assisting with and prosecuting individual claims brought before it, information disclosed to HUD may be used by the U.S. Department of Justice "in the filing of pattern and practice suits of housing discrimination" and other types of government litigation against people and entities which are found to engage in discriminatory housing practices.
State Fair Housing Agencies, California: California has a particularly robust set of civil rights and fair housing laws. In general, the categories of protected classes and rights of individuals to live in a discrimination-free environment are broader than any other statutory scheme that we have encountered. California’s Unruh Civil Rights Act11 lists a full paragraph of protected classes, including the typical race, sex, gender, and country of origin, but also including sexual orientation, medical condition, genetic condition, and primary language. Because of the expansiveness of California’s fair housing laws, in our experience, California fair housing claims submitted to HUD are immediately referred to the state fair housing agency, the Department of Fair Employment and Housing ("DFEH").12
Upon filing of a complaint with DFEH, a multi-tiered process ensues. The agency first processes and conducts a preliminary investigation into the discrimination claims alleged. In our experience, this involves an HOA responding to a lengthy and detailed questionnaire regarding the claims alleged and also the association’s general processes and procedures. While some effort has been made to tailor the questionnaire to the HOA structure, in general the questionnaire is designed for apartment building owners and contains a significant amount of information which is inapplicable to HOAs, but to which the HOA must still respond.
One improvement in the DFEH investigative process is the early implementation of mediation. The agency has hired a large number of trained attorneys who mediate disputes early in the process, typically immediately after the HOA submits its questionnaire response. While we have found that DFEH is not a good venue for HOAs because of the baseline assumption that discrimination in some form is always present, we have nonetheless been successful in resolving disputes using DFEH mediators. Consequences included in settlements often include director/manager training and procedural changes, as well as fines or financial reimbursement to complaining owners. However, these consequences are much less significant that those imposed after agency hearings or civil trials. Note that the agency may issue a "right to sue" letter if mediation and agency investigation does not result in resolution of the complaint.
Washington: Washington State’s civil rights enforcement agency is the Washington State Human Rights Commission ("WSHRC"). The mission of the WSHRC, as stated on its website, is "to prevent and eliminate discrimination through the fair application of the law, the efficient use of resources, and the establishment of productive partnerships in the community."13 Housing-related discrimination complaints must be filed with the WSHRC within one year of the alleged discrimination.14 The WSHRC also investigates housing-related complaints filed with HUD, because Washington State law is "substantially equivalent" to the federal Fair Housing Act.15
The WSHRC characterizes itself as a "neutral, fact-finding law enforcement agency; it does not act as an advocate for any party during an investigation, but advocates for the law in the interest of preventing and eliminating discrimination.16 However, having shepherded a number of clients through WSHRC investigations, our observation is that the commission starts with a presumption that the association subject to the complaint has acted illegally in some way. It is rare for an association to rebut that presumption successfully.
Responding to a WSHRC investigation is incredibly time-consuming and expensive, and often ends with a finding of wrongful discrimination on the part of the association. Conciliation (a mediation-like process offered by the WSHRC) can save an association some of that time and money by allowing the parties to agree to resolve the complaint without a formal finding of culpability. We also work with all of our clients to develop strategies to avoid, to the extent possible, being the subject of a WSHRC investigation. These strategies include having counsel review governing documents to eliminate bias, adopting anti-discrimination and anti-harassment policies to discourage discrimination within the community, and consulting with counsel immediately when responding to a request for accommodation.
FEDERAL CIVIL ACTIONS AGAINST ASSOCIATIONS FOR HARASSMENT AND DISCRIMINATION
The federal Fair Housing Act defines a dwelling in very broad terms. Specifically, the law states: "…any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof." The definition of a dwelling under the federal Fair Housing Act therefore applies to housing providers in all forms, including property owners, landlords, housing managers, neighborhood and condominium associations, real estate agents, and brokerage service agencies.
Thinking of a homeowner’s association as a housing provider can be both counterintuitive and unexpected. After all, except for stock cooperatives, the separate interests are not owned by the HOA and the HOA does not have nearly as much control over who is a member of the association and how they live in their separate interests. It is nearly impossible to "evict" a member from a condominium project or planned development separate interest, regardless of the severity of the violation of community rules and standards that may have occurred. However, despite the lack of ownership interest and management control over who lives in an HOA, the FHA is clear that HOAs are held to the same standard as apartment owners, managers, and public housing authorities when it comes to adhering to laws pertaining to discrimination and harassment.
It goes without saying, although the case law suggests that many housing providers did not get the message, that HOAs themselves should not engage in discriminatory or harassing conduct toward residents, employees, or vendors. In HOAs, discriminatory conduct often takes the form of failing to accommodate a disability by allowing programmatic exceptions, such as maintaining and using assistance animals in developments with rules that prohibit or severely restrict pets. While most HOAs seem to have adjusted to routinely permitting exceptions for service and assistance animals needed for physical disabilities (e.g., traditional guide dogs for people with impaired vision or hearing), failure to recognize assistance animals needed for emotional support or as a result of other types of mental illness constitutes discrimination as well.
Harassment is a form of discrimination, whether it is sexual harassment or harassment on the basis of race, national origin, etc. Currently, the federal Fair Housing Regulations require HOAs to "take prompt action to correct and end a discriminatory housing practice by a third party." This means that an HOA is legally obligated to "do something" when someone in the common area harasses another person in a manner which could trigger a discrimination claim. A heated argument on the common area which involves sexual harassment or discriminatory language is not just a neighbor-to-neighbor dispute and it is not a minor annoyance that can be disregarded. Under 24 C.F.R § 100.7(iii), an HOA is "directly liable" for "[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it."
In other words, an HOA can be held liable for a resident’s harassment of another resident when: the harassment is based on race, color, religion, sex, national origin, disability, and familial status; the HOA knew or should have known of the harassment; the HOA had the power to correct and end the harassment; and the HOA failed to take prompt action to correct and/or end the conduct.
This rule apparently arose as an extension of HUD’s philosophy that all housing providers, regardless of type and including homeowners’ associations, must provide an environment free of harassment and discrimination of all types. The particular problem for HOA housing providers, of course, is that associations do not have the level of control over who lives in their communities and how they behave once they reside there. Resident disputes in common areas that contain elements of harassment on the basis of a protected class have now become the housing provider’s responsibility as a matter of law.
Melissa Bauman Ward, Esq., CCAL is a partner at the Adams Stirling PLC law firm. She was recently made a Fellow of the College of Community Association Lawyers (CCAL).
1 See, e.g., Banaji and Greenwald, Blind Spot, Bantam Books, 2013.
2 Of course, it is possible that our self-awareness and intentional actions resulted in less foundational bias than if we were completely unaware of the issue. Nonetheless, it is important to realize that we all have bias, including areas that may be uncomfortable, and it is better to recognize this than to ignore it.
3 Biased, by Jennifer L. Eberhardt, PhD at p. 182.
4 Complaining about one’s HOA could be a whole category of NextDoor, although to our knowledge it is not. Counseling board and managers on how to handle social media is a worthy topic for another day.
5 Eberhardt at 183.
7 Dr. Eberhardt reports that NextDoor implemented this pop-up questionnaire and that it had some effectiveness (according to NextDoor). Melissa’s experience with suburban Bay Area NextDoor neighborhoods suggests otherwise. Is this a problem with the particular moderators or with the NextDoor algorithm? We do not know.
8 Eberhardt at 185.
10 Arabic, Cambodian, Chinese, Korean, Russian, Somali, Spanish, and Vietnamese.
11 Ca. Civ. Code section 51 et seq.