By Steven G. Mehta

Recently there has been a lot of controversy over illegal and legal immigration.  Although come to think of it, the controversy is not new, nor is it unique to the United States.  Most countries have significant controversy over immigration.  In addition, there are very heated feelings about immigration; and then there are equally heated feelings about the people that oppose such immigration.  All in all immigration is an enduring topic that affects all aspects of our lives.  Many times in mediation the issue of immigration status comes up and its effect on the outcome of the case. 

I have previously written about studies that show that juries are likely to not empathize with people from other cultural backgrounds.  (See my prior post People’s Biases Towards Other’s Pain Revealed in New Study).  But I would also like to address some of the more deep seated reasons some of these biases exist.  Therefore, I have researched some literature on this topic and thought I would share it with you.

One study that was presented to the American Socialogical Association addressed the issue of immigration in the context of American values of egalitarianism and the protestant work ethic (PWE).  That study concluded that Americans have historically held ambivalent attitudes toward immigrants. While they recognize that immigration is an inextricable part of the American national identity, most Americans perceive immigration as inherently threatening and, as a result, maintain various negative stereotypes about immigrants. Modern theories of prejudice suggest that the sympathy and antipathy that Americans express toward immigrants are due to two strong, but conflicting values.

On the one hand, Americans value egalitarianism, characterized by social equality, social justice, and concern for others in need. On the other hand, Americans also value the Protestant Work Ethic (PWE), an individualistic belief in hard work, self-denial, and individual achievement. The study tested the relationship between egalitarianism, PWE, and attitudes toward immigrants. The study found that that both egalitarianism and PWE  independently predicted attitudes toward immigrants, with egalitarianism associated with positive attitudes toward immigrants and PWE associated with negative attitudes. However, PWE predicted attitudes only toward ethnic groups stereotypically perceived as violating the PWE, but it did not predict attitudes toward groups thought to uphold the PWE.  Finally, the study found that close contact between the subjects and immigrants was associated with positive attitudes toward immigrants, whereas impersonal contact was not predictive of attitudes.

Matsuo, H. and McIntyre, K. , 2005-08-12 “Ambivalent Prejudice toward Immigrants: The Role of Social Contact and Ethnic Origin” Paper presented at the annual meeting of the American Sociological Association, Marriott Hotel, Loews Philadelphia Hotel, Philadelphia, PA Online <PDF>. 2009-05-25 from

Other researchers have discussed the fact that some of the bias against immigrants is based upon inherent biases against people who we perceive to be in a different social group from our own – the so-called ‘out group bias’ – together with a similar aversion to people who are members of a social minority. Migrants usually fit both these descriptions.

Now Mark Rubin and colleagues have another, even more elemental reason for prejudice against migrants — ‘cognitive fluency’. People generally favor things that they find easy to process, as demonstrated, for example, by their preference for investing in companies with easy-to-pronounce names.  Rubin and his colleagues believe that there’s something cognitively awkward when it comes to considering migrants, and this mental difficulty biases us against them. ‘An Algerian who has moved to the United States would be more difficult to process than an Algerian who is living in Algeria,’ they wrote.

The researchers recruited hundreds of students to perform various thought experiments. The students imagined a group of people in a room and that this first group was divided arbitrarily into two smaller groups, A and B, with a minority of each group then sent to the other group. The group swappers were the ‘migrants’. The researchers balanced out the effects of out-group and minority bias by asking the participants to imagine they were themselves either in the migrating group, control group, or not involved. They next asked the students to rate the character of a typical control group member (one who stayed in his or her original group) and a typical migrant (who’d swapped groups), and then they asked the students to rate how easy they’d found it to think about members of the different groups.

Interestingly, the students rated migrating group members more negatively than control group members and this was partly because they’d found it more difficult to think about the migrants compared with the control members. A second study showed that group members who were excluded from their original group, rather than swapped to another group, were also rated negatively and described as awkward to think about.

The researchers said their finding showed prejudice against migrants can partly be explained by the cognitive awkwardness of thinking about a person who lives in one place but hails from another. 

Rubin, M., Paolini, S., & Crisp, R. (2010). A processing fluency explanation of bias against migrants. Journal of Experimental Social Psychology, 46 (1), 21-28 DOI: 10.1016/j.jesp.2009.09.006

These studies have some direct application to the mediation and litigation world.  First, the ethnic background of a person is usually taken into consideration when considering the evaluation of the value of the case – despite the fact that in modern society it shouldn’t be so.  The reality is that people do have biases; and as these studies suggest, they are deep seated for many reasons.  The makeup of the jury is often discussed extensively as it applies to the plaintiff or defendant.  People often say that they don’t think the jury will connect with an immigrant from [name the country.]

These studies start to reflect some of the issues that are underlying these ever present biases.  As noted above, many people are fighting for the protestant work ethic.  You hear of statements that the immigrants are taking all the welfare money, using the services, and forcing hospitals to close.  These complaints are directly correlated with the PWE.  This issue would be an important area to voir dire in front of a jury, especially when you have an immigrant party in a jurisdiction that has few immigrants or when less immigrants will make the jury pool.

Another consideration is to try to change the person’s focus towards egalitarianism and trying to get people to consider the immigrant as part of the greater social order or part of the in group.  In addition, it might be helpful as a litigator to try to develop facts and information that demonstrate that your particular client is trying to integrate into the greater society by learning the language, paying taxes, working hard, not using public assistance, etc.

As a mediator, this topic could be an important area of discussion.  Understanding the reasons for a particular bias is the first step in being able to overcome that bias.