The Importance of Unconscious Bias in Professional Liability

Robert G. Chadwick, Jr.Chadwick photo
Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC

Robert Chadwick is a Managing Member of the law firm of Seltzer, Chadwick, Soefje & Ladik, PLLC. He has more than 36 years of experience representing management, fiduciaries and professionals in the areas of labor and employment law, ERISA investigations and litigation, and professional liability. He is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

You are at a stop light on a street corner and you see out of the corner of your eye a panhandler by the side of the road. Before you know it, and before you even think about what you’re doing, you look down at your car door locks. Your brain has just made an association – panhandler = danger of theft. You may even wonder afterwards, why did I just do that?

The answer is unconscious bias, also known as implicit or cognitive bias. Simply stated, the human brain is wired to take mental shortcuts based upon past experiences and background. This mental shortcut occurs automatically as a result of the brain’s effort to simplify information and attitudes. The reason you checked the door locks was a shortcut based upon your experience and background which caused you to act instinctively.

The foregoing scenario is seemingly benign, but unconscious bias affects all of our decisions, even important ones. Research shows unconscious bias can impact (1) a physician’s diagnosis of a patient and recommended course of treatment, (2) a lawyer’s representation of a client, (3) an officer or director’s decision-making as to the future of a company, (4) a broker’s interaction with a client, and (5) an employer’s decision as to a job candidate or employee.

Unconscious Bias is Real

To be sure, there are critics who argue unconscious bias is nothing more than a myth based on junk science. Harvard, however, maintains that more twenty years of research proves the phenomenon to be real:

 “… psychological research routinely exposes counter-intentional, unconscious biases. The prevalence of these biases suggests that even the most well-meaning person unwittingly allows unconscious thoughts and feelings to influence seemingly objective decisions. …

Mahzarin Banaji, Max H. Bazerman, and Dolly Chugh (2003), “How (Un)ethical Are You?”, Harvard Business Review 81, No. 12, 56.

More importantly, the courts agree the phenomenon is real. In U.S. v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005), the Seventh Circuit stated: “Unfortunately … unconscious bias is not limited to one area of society … the evidence of continued racial stereotyping in employment, housing, insurance and many other areas makes that apparent.”

In the final analysis, the naysayers can question the science all they want. If the courts say unconscious bias is real, that is reason enough for professionals to pay attention.

Unconscious Bias is Often At Odds With Self-Perception

So, can a person truly hold a bias (positive or negative) toward a group of people but be totally unaware he or she holds that bias? As the Harvard researchers have explained, the answer to this question is an unqualified “yes””:

“Most of us believe that we are ethical and unbiased. We imagine we’re good decision makers, able to objectively …reach a fair and rational conclusion that’s in our, and our organization’s, best interests. But more than two decades of research confirms that, in reality, most of us fall woefully short of our inflated self-perception.”

See Mahzarin Banaji, Max H. Bazerman, and Dolly Chugh, supra at 56.

The courts too have come to understand the dichotomy between self-perception and implicit bias. As recognized in Justice Donald’s opinion in U.S. v. Robinson, 872 F.3d 760, 785 (6th Cir. 2017):

“Perhaps the most disturbing aspect of implicit bias is that it operates outside of a person’s conscious intent. Such biases often conflict with one’s consciously-held, egalitarian values, and indeed are more predictive of our conduct than are those explicitly-held values.”

Unconscious Bias Often Leads to Incorrect Conclusions

So, what is wrong with mental shortcuts? Since they are based upon past experiences, rather than existing circumstances, they can be based upon inaccurate or incomplete information. Predictably, mental shortcuts are often wrong.

As observed by the Harvard researchers:

“Early on, we learn to associate things that commonly go together and expect them to inevitably co-exist: thunder and rain, for instance, or gray hair and old age. … But, of course, our associations only reflect approximations of the truth; they are rarely applicable to every encounter. Rain doesn’t always accompany thunder, and the young can also go gray. Nonetheless, because we automatically make such associations to help us organize our world, we grow to trust them, and they can blind us to those instances in which the associations are not accurate-when they don’t align with our expectations.”

See Mahzarin Banaji, Max H. Bazerman, and Dolly Chugh, supra at 58.

Mental shortcuts are thus inherently untrustworthy. When allowed to influence important decision-making, the results can be detrimental to professionals.

Unconscious Bias Often Leads to Negligent Decisions

One detrimental result of implicit bias is negligent decision-making which risks a malpractice claim. Research shows unconscious bias can get in the way of even a well-intended professional’s gathering and assessment of information.

One systematic review studied the impact of cognitive bias on healthcare delivery based upon the following characteristics: “race/ethnicity, gender, socio-economic status (SES), age, mental illness, weight, having AIDS, brain injured patients perceived to have contributed to their injury, intravenous drug users, disability, and social circumstances.” FitzGerald C, Hurst S. Implicit bias in healthcare professionals: a systematic review. BMC Med Ethics 2017; 18. The study found that “some evidence of bias was evident either in the diagnosis, the treatment recommendations, the number of questions asked on the patient, the number of tests ordered, or other responses indicating bias against the patient.” Id.

Several studies have also shown African Americans with depression are more likely to be misdiagnosed with schizophrenia than white Americans. Stephen Strakowski, acting senior associate dean of research and psychiatry professor at the University of Texas at Austin, posits the hypothesis that implicit racial bias is to blame for the disparity.

According to Mark Graber, chief medical officer of the Society to Improve Diagnosis in Medicine, moreover, patients with mental illness are also affected by implicit bias. He says physicians often neglect physical ailments when diagnosing and treating mental health problems.

Unconscious Bias Often Leads to Discriminatory Decisions

Another detrimental consequence of implicit bias is decision-making based on unlawful criteria, thereby risking discrimination claims. Courts have long recognized that making employment decisions based on unconscious bias of which they may or may not be entirely aware can be unlawful.

In Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir. 1999), a race discrimination suit under Title VII of the Civil Rights Act of 1964, the First Circuit observed: “Title VII’s prohibition against ‘disparate treatment because of race extends both to employer acts based on conscious racial animus and to employer decisions that are based on stereotyped thinking or other forms of less conscious bias.” The court concluded that plaintiffs can indeed challenge “subjective evaluations which could easily mask covert or unconscious race discrimination.” Id. at 58.

In Price v. Waterhouse v. Hopkins, 490 U.S. 228, 250- 52 (1989), the U.S. Supreme Court recognized that stereotyping can constitute evidence of discrimination. In the specific context of sex stereotyping, the Court found an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. Id. at 250.

In Kimble v. Wisconsin Dept. of Workforce Development, 690 F.Supp.2d 765 (E.D.Wis. 2010), an African American male alleged he had been discriminated against because of race and gender in being denied a raise. In ruling in his favor, the court cited many of the common stereotypes regarding black males:

 “… scholars have long recognized that black males are subject to distinct stereotypes. For example, some white Americans believe that black males are less intelligent than other groups, including black females. [citations omitted] As a result, black males are sometimes monitored more closely than members of other groups. [citations omitted] Other stereotypical attitudes focus on cultural styles – black men are sometimes thought to be more direct, expressive and assertive than white men, [citation omitted] and on black uncontrollability as, for example, having a bad temper [citation omitted].”

Id. at 770-71. The court then went on to cite examples of conduct by the plaintiff’s supervisor, which included avoiding contact with the plaintiff, taking little interest in the plaintiff, and being quick to blame the plaintiff and slow to recognize his achievements.

 Can Unconscious Bias Be Avoided?

Since mental shortcuts are automatic, they cannot be deprogrammed from an individual. Steps can be taken, however, to minimize the influence of cognitive bias in decision-making by professionals.

The first and most important step to combating cognitive bias is education. Since 1998, the Harvard on-line Implicit-Association Test (“IAT”) has been publicly available for individuals to test their personal unconscious biases. This test has proven to be a useful tool for educating individuals as to the dichotomy between self-perception and cognitive bias. Once a professional has a better understanding of this dichotomy, a risk management strategy can then be tailored to minimize the impact of unconscious bias on decision-making and, in turn, the risk of a suit for professional malpractice or discrimination.

Meet our new PLUS Blog Contributors

We’re excited to announce a new line-up of industry experts who will be contributing to the PLUS Blog in the coming months. Read on to learn who will be contributing, and to see the authors’ answers to the question “I find value in being involved with PLUS . . .” Their content will also be available on the new PLUS 365 App, launching next month.

Thank you to all our new contributors, and we’re excited to read your posts starting next week!

Chadwick photoRobert G. Chadwick, Jr.
Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC

Robert Chadwick is a Managing Member of the law firm of Seltzer, Chadwick, Soefje & Ladik, PLLC. He has more than 36 years of experience representing management, fiduciaries and professionals in the areas of labor and employment law, ERISA investigations and litigation, and professional liability. He is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

“I find value in being involved with PLUS because of the people who are involved with the organization. I look forward to PLUS events to reconnect with people I have come to admire and respect. The relationships I have developed during the 15 years I have been involved with PLUS have become an important part of both my professional and personal life. For me, PLUS is more than a professional organization; it is a family.”


Abbas HassanAbbas Hassan
Senior Underwriter, Healthcare, StarStone Insurance

Abbas Hassan is a Senior Underwriter at StarStone Insurance, where he is part of the Healthcare Underwriting team. He graduated from Rutgers, The State University of New Jersey, with a bachelor’s degrees in Mathematics. After graduation he pursued his Master’s in Business Administration from William Paterson University while being employed at CNA Insurance. Abbas Hassan lives in New Jersey with his wife and three daughters.

“I find value in being involved with PLUS, as PLUS provides relevant education for the growth of the industry. PLUS also provides great networking opportunities to members for professional development which in turn helps advancement of career opportunities. Most important to me, are the relationships that I have made which have had an impact on me both personally and professionally. Over the years of my career I’ve gained so much from my involvement with PLUS, and now feel I am ready to give back to the organization.”


John HumphreysJohn Humphreys
Vice President, Financial Institutions, Everest Specialty Underwriters, Everest Insurance®

John is a Vice President in the Financial Institutions group within Everest Specialty Underwriters (ESU). In this role, John assesses investment advisors, mutual funds, hedge funds, and related financial institutions for Directors & Officers (D&O) and Errors & Omissions (E&O) insurance. John manages a team of Financial Institutions underwriters whose responsibilities include analyzing and pricing risk, and strengthening and developing new broker relationships. John helps design and launch new insurance products, including the Everest Elevation® Investment Management Insurance Policy (“Elevation IMI”) that launched in March 2018, and he leads ESU’s evaluation of the opportunity to insure blockchain, Insurtech, Fintech and related emerging technologies.

“I find value in being involved with PLUS because it puts me at the forefront of emerging ideas and relationships in the Professional Lines industry. PLUS is the common thread in our industry; bringing together underwriters, brokers, Insureds and other stakeholders to identify and analyze emerging risks in order to effectively and creatively find risk transfer solutions. Our industry is always evolving and PLUS is at the center of those developments.”


Greve_PaulPaul Greve, JD RPLU
Senior Director, Healthcare Risk Solutions, Markel Specialty

Paul has twenty years’ experience as an administrator, risk manager and attorney for major hospitals in Ohio, including Cleveland Clinic, University Hospitals of Cleveland, Columbus Children’s Hospital, and St. Luke’s Hospital. Paul also has twenty years’ experience in the health care professional liability industry as a broker and consultant.  He worked as a broker and consultant for Willis for 19 years, primarily in the National Health Care Practice. He has also worked for two health care professional liability insurance companies including Medical Protective and Markel Specialty.

“I find value in being involved with PLUS for many reasons. The ability to network with excellent insurance professionals in the field of medical professional liability creates resources and great friendships. The educational content provided is superb: conferences, webinars and the PLUS Journal. PLUS staff and volunteer leadership are always striving to improve the delivery of services to members.”


Kurt.SuhsKurtis Suhs
Founder and Managing Director, Cyber Special Ops, LLC

Mr. Suhs serves as the Founder and Managing Director for Cyber Special Ops, LLC,  a cyber risk company that provides its clients with Concierge Cyber®, a revolutionary new delivery solution for cyber risk services modeled on concierge medicine.

“I find value in being involved with PLUS where I am able to contribute to the professional liability insurance industry and local community via mentoring, community outreach and service programs.”


Emily_Bonds_390_4x5Emily Sides Bonds
Partner, Jones Walker LLP

Emily represents agents and brokers, directors and officers, other professionals, and business entities in professional liability, products liability, mass tort, class action, banking and financial services, insurance coverage, and other commercial litigation. Her practice extends to all state and federal courts in Alabama and Mississippi. In addition, Emily is a trained mediator and arbitrator.

“I find value in being involved with PLUS in gaining contacts in the insurance industry through committees and seminars.  In addition, the daily briefings keep me apprised of developments in the areas in which I practice.”


Tim SmitTimothy Smit
Sr. Global Privacy and Cyber Security Risk Leader, Lockton Companies

Timothy develops long-range strategies directing clients how to optimize their data effectively and responsibly.  He focuses on privacy compliance, data protection, and the use of or introduction to digital technology.  He assists in identifying data privacy risks, operational risk, process improvement, and conducting data flow mapping exercises.  Timothy conducts risk assessments and develop strategic solutions for managing those risks along with building incident response programs and plans to improve operational resiliency to a cyber or privacy event.

“I find value in being involved with PLUS in multiple ways.  Being exposed and introduced to market leaders in proactive, preventative loss controls services with both carriers and vendors along with all of PLUS’ members with their vast knowledge and experience to continue learning from within all of the programs and forums available to us as members.”


Brittany LannanBrittany Lannan
Senior Underwriter, Professional Liability, Everest Specialty Underwriters, Everest Insurance®

Brittany is a Senior Underwriter in the Professional Liability group within Everest Specialty Underwriters (ESU). Brittany joined Everest in April 2019 to help launch the Lawyers Professional Liability policy, which is designed to provide law firms with liability coverage for financial loss suffered by third parties arising from acts, errors, and omissions in providing legal services. At Everest, Brittany’s responsibilities include growing the lawyers professional liability business, developing and strengthening relationships with brokers, using her specialized industry knowledge to effectively address client needs and working with colleagues throughout the lawyers professional liability space to enhance the services they provide. Brittany maintains significant relationships with brokers across the country and has a solution driven underwriting approach, which has been vital to growing the book nationally.

“I find value in being involved with PLUS because it provides a network of professionals across all subindustries within Professional Liability. PLUS continuously offers courses and events that have proven to be beneficial in my own professional growth, while keeping its members up to date with the latest topics, trends and news that affects our industry.”

Rob YellenRob Yellen
D&O and Fiduciary Liability Product Leader, FINEX, Willis Towers Watson

Rob is a recognized expert in directors and officers liability with a rare combination of Financial Lines experience that includes serving as a chief underwriting officer, global head of product development and a foreign general insurance chief legal counsel for a leading insurance carrier.  Today, Rob counsels clients and serves as a thought leader and technical expert, trouble shooter, and claims resource on Financial Lines issues with a focus on D&O and Fiduciary products.  He co-leads the Willis Towers Watson Strategic Solutions Group and chairs its North American and Global FINEX Advisory committees.

“I find value in being involved with PLUS  for two key reasons:  (1) Even this old dog needs to learn new tricks.  There is no substitute for the value of PLUS thought leadership—whether via conference, webinar or blog.  (2) PLUS affords meaningful, unparalleled networking opportunities that lifts both my work and my career.” 

Special Message from PLUS CEO

Our hearts are heavy and filled with profound sadness. The senseless death of George Floyd, an unarmed black man, here in Minneapolis, home city of PLUS and its staff, point to the bigotry and racism that remain endemic and tolerated in parts of our society. This sorrowful event, and other recent senseless killings, and the protests that are occurring in cities across the country have shaken our nation to its core and ignited frustration and anger across the globe.

As an association committed to inclusiveness and diversity, PLUS and our industry must reflect on the pain this event has caused many of our members and communities. Pain only compounded by the challenges faced during an international health pandemic and intensified by subsequent violence that has overshadowed peaceful protesting. PLUS has taken steps to be more inclusive and strengthen opportunities for underrepresented groups in our industry, including its Leadership and Mentorship Program (LAMP) and its commitment through its Diversity & Inclusion Committee and D&I plan. But these tragic events certainly highlight the need to do more.

We must speak up, stand up and act together to seek reform to end racial injustice and discrimination in our society. And, PLUS is committed to playing a role in that effort in our industry and our communities by fostering constructive dialogue among our members. At PLUS we promote a shared sense of belonging and mutual respect for all members, employees, and customers. We call upon our members to join with PLUS and its leaders to participate in efforts to eliminate racism and ensure an inclusive, compassionate environment.

Know that our heavy hearts are also filled with hope. Hope that through the efforts of many we can bring meaningful, permanent change. We look forward to making this effort with you in the future.


Robbie Thompson, CEO, PLUS