Implicit bias is pervasive. It is a consequence of our brains’ quest for efficiency. Instead of laboring over every decision we need to make each day, our brains take shortcuts when making routine decisions. For example, each time you stop at a red light you don’t contemplate what that means or what options you have. You simply stop because your brain has already processed what the red light means and, as a result, it uses very little energy in making that decision.
While most of these shortcuts are helpful, some of them can be misleading because they may be based on stereotypes. As Dr. Arin Reeves notes in her article “The Ineffectiveness of Efficiency: Interrupting Cognitive Biases for Critical Thought,”
In this way, our brains reproduce the biases that exist. For example, our brains may incorrectly associate an African American male with criminal behavior or an Asian woman with submissiveness. Addressing implicit bias requires critical thinking about the decisions we make and the underlying assumptions that guide those decisions. While we may not need to engage in a deliberative process at each red light, it is essential to do so when making decisions related to employment, the criminal justice system or how to treat customers, for example.
Recently, Starbucks decided to take a step in addressing implicit bias by closing its U.S. stores and corporate offices on Tuesday, May 29 for an afternoon of implicit bias training. The curriculum for the training is being developed with input from national figures who have been dedicated to addressing racial bias such as former U.S. Attorney General Eric Holder and Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund.
The coffee retailer made this decision after a white store manager at a Philadelphia Starbucks called the police on two African American men because they did not purchase anything. A video of the incident went viral and led to several days of protests. Both Starbucks chairman, Howard Schultz, and CEO, Kevin Johnson, personally apologized to the men and appeared on television interviews, pledging to address implicit bias in their stores and offices.
While one afternoon of presentations will not end implicit bias in all Starbucks stores, it is an important first step in encouraging those who work for Starbucks to think critically about the split second decisions they make about individuals based on their appearances. It will help their employees better serve the public and bolster their reputation for being welcoming spaces for everyone.
The legal industry can learn a lot from Starbucks’ approach. While implicit bias impacts all aspects of diversity and inclusion efforts, it is particularly damaging to the way in which associate work is assigned and evaluated in firms.
For example, a study performed by Nextions, LLC, found that partners who reviewed a memo written by a fictional African American male associate discovered more errors and provided more negative comments than an identical memo written by a fictional white male associate. The study included 60 partners from 22 different law firms, with about one-third being women and one-third being racial/ethnic minorities. Half of the partners received the memo written by the African American male associate while the other half received the memo written by the white male associate. On a scale from 1 to 5, with “1” indicating a poorly written memo and “5” a well-written memo, the memo written by the African American male associate received an average rating of 3.2/5 while the memo written by the white male associate received 4.1/5. Given that the memos were identical and in fact the fictional associates had the same name, Thomas Meyer, the only factor that could account for the significant difference in their scores was their race.
How do we explain this difference? It’s possible that explicit bias (or conscious bias) played a role. However, the study notes that previous research had shown that implicit bias is more prevalent in our workplaces than explicit bias. How then do we address implicit bias in our firms? How do we encourage supervising attorneys (partners, counsel and senior associates) not to make these cognitive shortcuts when assigning work or when reviewing work product? I provide a few insights below on how firms can start this conversation.
1. Train Supervising Attorneys on Implicit Bias
In a statement from Starbucks, the company acknowledged that the training is only a first step: “The training is part of a longer, comprehensive effort to make Starbucks even more diverse, equitable, and inclusive than it is today. This will include ongoing review and revisions of relevant store and corporate policies, guidelines and practices.” Starbucks acknowledges that they also need to reach out to local communities in order to fully address implicit bias and improve inclusion in their stores.
Likewise training supervising attorneys on implicit bias is an essential step in addressing concerns over the retention of diverse associates. We are more likely to force our brains to make critical decisions if we understand that some of our split second decisions are based on stereotypes. The first step to this awakening is to know that implicit bias exists.
While some law firms have implemented some form of implicit bias training, it’s unclear how widespread these trainings are or their frequency. Given the role supervising attorneys play as the gatekeepers in law firms, I would suggest law firms implement mandatory implicit bias training for all supervising attorneys. Even if a firm has a dedicated diversity and inclusion professional, supervising attorneys must also be devoted to improving retention of diverse associates and creating more inclusive spaces.
Some states, such as New York and Illinois, have recently implemented a one credit diversity CLE requirement for attorneys. To assist with that effort and to ensure all Illinois attorneys, regardless of their firm or practice, have access to implicit bias training, the Illinois Supreme Court Commission on Professionalism recently developed an online course, “Rebalance the Scales Course: Implicit Bias, Diversity, and the Legal Profession”. The e-learning course features law firm attorneys, in-house counsel and law professors defining implicit bias and explaining the ways in which it operates within the legal industry. The course also provides exercises that encourage participants to challenge their biases, not only as lawyers, but in their daily lives.
2. Revamp the Assignment Process for Junior Associate
At the heart of an associate’s experience at a firm is the nature of the assignments they receive. If the complexity of their assignments does not increase or their assignments lack variety, associates are unlikely to learn the skills and practice area knowledge that’s essential to thriving in a firm. A formal assignment system that requires work to be distributed from a central source can be a great way to ensure all associates are receiving the kind of experience they need to advance in their careers. A system that requires associates to secure their own assignments may be difficult to execute for diverse associates given the prevalence of implicit bias. The results of the Nextions, LLC study, discussed above, suggest supervising attorneys may be more likely to give assignments to white associates than diverse associates because they are more likely to view the work product of white associates more favorably than diverse associates.
Additionally, beyond instituting a formalized assignment system, the hours of junior associates should also be tracked to ensure assignments are indeed being equitably distributed. Thankfully, since most firms require associates to keep track of their time, it should be relatively straightforward to determine which associates are busy and which associates could use additional hours. Given that the first through third years are crucial years for an associate’s development, ensuring that associates are receiving relatively similar work experiences is essential to not only addressing implicit bias, but also associate retention generally.
Also, firms must look for ways to encourage supervising attorneys to work with different associates. Since some firms divide associates into client teams, it might be helpful to rotate associates through different client teams every year within the same practice group. Doing so will allow associates the opportunity to work with various clients and gain the experience needed for promotion while also building internal networks by working with different supervising attorneys. To the extent firms can formalize work opportunities available to associates, the less of a role implicit bias can play in determining who gets certain assignments.
3. Restructure the Evaluation Process
In addition to formalizing the assignment process, firms need to also rethink how associates receive feedback and are evaluated. Receiving feedback can be one of the most difficult aspects of an associate’s experience. As the Nextions, LLC study discussed above demonstrates, there is a difference in how white associates are evaluated versus diverse associates (at least African American male associates as the study indicates).
What are the consequences of receiving such an evaluation? For example one might assume that the African American male associate would become a better writer as the result of receiving a more critical review of his work. Unfortunately, even if his writing improves, the continued critical review of his work will hamper his chances of receiving additional assignments and being promoted, especially if his fellow white associates are not receiving the same level of critical review. His work product will constantly be under assault because supervising attorneys will look more critically at his work expecting to find more mistakes. After a few negative reviews of his work, he will have developed a reputation for not being a good writer and providing a shoddy work product, which will then impede his ability to get staffed on assignments going forward.
How can firms restructure their feedback or evaluation process to overcome implicit bias? The study suggests implementing interruption mechanisms that limit the impact of implicit bias on associate evaluations. These interruption mechanisms can include crafting evaluations that are more objective and that ask specific feedback and details on the work provided rather than simply asking supervising attorneys to rate an associate’s work product. Firms should consider working with consultants to craft evaluation forms that allow for more objective responses that can reduce the impact of implicit bias.
4. Hold Supervising Attorneys Accountable
Finally, in order for the strategies discussed above to impact the work diverse associates receive and how that work is evaluated, supervising attorneys must be held accountable. Firms cannot simply pay lip service to implicit bias. Each firm’s leadership must set the tone for supervising attorneys about the importance of attending trainings and being actively engaged in any changes to the assignment or evaluation process to reduce the impact of implicit bias.
Firms should consider implementing anonymous evaluations of supervising attorneys. While this may seem controversial, the goal is not to embarrass supervising attorneys, but to find ways to evaluate how effective efforts to address implicit bias are. If evaluations from diverse associates indicate a pattern for certain supervising attorneys, it might be worth addressing these concerns rather than leaving them unchecked. These evaluations are also a great way to improve the training and teaching skills of supervising attorneys generally.
While firms and supervising attorneys may want to continue operating as usual because it’s comfortable and easy, they have to challenge themselves to make decisions that will improve the experiences of diverse associates as well as all associates. Ensuring that supervising attorneys are held accountable for actively working to address their implicit biases in the assigning and reviewing of associate work will improve the retention of all associates.
Confronting implicit bias in law firms will not be a simple task. In fact, firms will have to constantly work to ensure supervising attorneys are thinking critically about who they are giving assignments to and who they are not as well as how they evaluate diverse associates. Tackling implicit bias is essential to addressing the lack of diversity in our nation’s law firms. While implicit bias may be pervasive, law firms, like Starbucks, can take a step in the right direction by acknowledging its existence and seeking concrete solutions.