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Recognizing and avoiding implicit bias: How to make an impact on the future of legal leadership

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Women in Leadership Roles

As lawyers we like to believe that our profession is a true meritocracy, but the legal profession is still, despite decades of improved law student diversity and more inclusive associate hiring practices, unable to retain and promote talented women, people of color, LGBTQ, and individuals with disabilities.  Women make up less than a quarter of law firm partners.  And for those women who do become partners, they typically earn only about 70 percent of what their male counterparts earn.  Similarly, women make up just about a third of the sitting judiciary at both the state and federal levels.

The numbers are even more discouraging for people of color, who make up less than 10 percent of law firm partners and less than 20 percent of the sitting judiciary.  In fact, women of color make up less than three percent of law firm partners, making them one of the most underrepresented groups within the legal field.  And less than five percent of the legal partnership tier is composed of individuals who identify as LGBTQ or disabled.

So why—despite so much focus in law schools and within firms on diversity, equity, and inclusion—are we still seeing a white male dominated partnership class and judiciary?  In large part this is due to implicit biases.  While explicit biases can be more easily confronted, implicit biases often go unnoticed and unseen until the collective impact becomes obvious. 

Implicit biases are largely based on ingrained cultural stigmas and stereotypes that most of us carry with us without even knowing.  Implicit Association Tests can be used to reveal such implicit biases and once we recognize those biases, we can start to work to counter them.  Some of the most common workplace biases include performance, attribution, likeability, parental, disability, and affinity. 

Performance bias is focused on the assumptions one makes about another’s performance of workplace ability.  We often see this when a supervising attorney appears harsher in their criticism of the work product of a female or person of color, but assumes that the skills of a male or white person are at a certain level without any actual support.  You might also see this when someone makes assumptions about another’s position or experience level bases solely on their visual appearance.  For example, mistaking an attorney for a court reporter based on their gender. 

Attribution bias also arises frequently in the workplace where women and minorities are often given less credit for their successes and accomplishments whereas men and non-minorities have work mistakes glossed over.  A classic example is when credit for a team project goes to the white male on the team versus the other more diverse team members.

Likeability bias can easily be seen during many of our political cycles where we see female candidates being questioned mainly about their genuineness or aggressive management style versus their other attributes.  This is because the same qualities of assertiveness and aggressiveness that are prized in male leaders are often described in negative terms for women, such as shrill or bossy.  And then there is the flip side where women can be discredited as professionals if they are “too” likeable and, thus, deemed weak and ineffective.

Parental bias is the misconception that a parent—and this is particularly true for mothers—is less career focused and less interested in their job.  This can lead to being “mommy-tracked” (being denied promotions, bonuses, responsibility, etc.), and there have been numerous lawsuits against very well-known law firms about this in the past few years.  And while we typically think of parental bias as impacting women alone, men who take paternity leave often end up suffering the same “mommy-tracking” that their female counterparts experience. 

Similarly, disability bias is the idea that someone is less competent or less driven to succeed in their career because they have a disability 

Affinity bias, in contrast, is more of a preference, and it is probably the most common bias you see in the workplace because cliques naturally form between individuals with similar affinities.  Who do we invite to lunch or sit with on a break?  Who do we socialize with?  Who do we refer work to?  Often, it is people we have something in common with, who look like us, remind us of ourselves, or have a shared background, be that gender, education, country of origin, sexual orientation, etc.  But when this moves to excluding others who are different from us, or holding them to a higher standard, it becomes a serious problem.

So, once we have acknowledged these biases, what can we do to stop their clearly negative impacts?  How do we keep women, people of color, and other minorities in the legal profession? 

A great example of what we can do can be seen in one of the leading law firms in France, Taj, which achieved 50/50 gender balance even at the equity partner level.  And they were able to do this because the firm leadership fully committed to gender equality.  They refused to tolerate any explicit or implicit bias, ensured that cases were assigned equally between men and women, ended “mommy-tracking” by adjusting performance goals based on the reduced hours worked for anyone who took maternity leave, and confronted client biases head on.  And making these changes created an environment where women could fully develop their potential, form relationships with clients, become rainmakers, and be promoted within the firm. 

And these same results can be achieved for other minority groups.

While it can be harder for junior attorneys to actively work on reducing bias when they are not in leadership positions, they can try to correct staffing inequities.  For example, consider the work you are getting and volunteering for and try to make sure that you are getting enough of the Glamour Work vs. Office Housework and volunteering for Office Housework when you see it being disproportionally assigned to your peers.  The Glamour Work is the work that allows you to build a portfolio, interact with clients, improve your legal skills, and work with more senior level attorneys.  The Office Housework is the stuff that has to get done but gets no praise, like calendaring events, coordinating phone calls, organizing lunch for meetings, etc.  Glamour Work can lead to more and better assignments and eventually promotions.  Office Housework seldom helps one advance their career.

Another thing to be cautious of is Internal Committees vs. Revenue Generating Committees.  A good example of this would be diversity or culture committees versus innovation or technology committees.  While it can be very rewarding working on the former, they do not necessarily generate money or improve productivity, at least in the short term, so contributions to such efforts are often not appreciated by firm leadership.  Whereas helping to streamline and cut costs for a document management system creates a measurable result that can help a firm improve profits, thus, something management will remember when they think about who to staff on future initiatives. 

So, try to make sure that not only are you getting the revenue generating focused projects, but also that you are inviting other diverse coworkers into those opportunities.

The legal profession isn’t going to change on its own, but we can all help to make it better for future generations of lawyers and for ourselves.

Alyson Decker Alyson Claire Decker is an experienced general counsel, litigator, board member, and business leader. While her private practice focuses largely on employment law, she is passionate about contributing to the continued development of space law. Alyson is also an adjunct law professor, mediator, consultant, public speaker, and MCLE presenter.