The color-blind approach commonly employed to diversify law firms may prevent leaders from achieving their goal of minority inclusion. Why? Implicit bias.
What is Implicit Bias?
Implicit bias describes unintentional, fundamental, and pervasive biases that fuel stereotypes and many instances of discrimination. These biases tend to reflect the existing power structure in society. They become internalized and unconsciously impact our daily decisions.
Implicit bias likely fuels the continued underrepresentation of minorities in the legal profession. The National Association for Law Placement (NALP) reports in its April 2018 bulletin that 81.3 percent of equity partners are men, 18.7 percent are women, and 6.1 percent are minority men and women combined. Black attorney representation remains stagnant. NALP’s February 2018 bulletin reports that African Americans comprised 4.24 percent of U.S. law firm associates and 1.28 percent of partners in 2001. In 2017, those percentages were 4.28 percent and 1.83 percent, respectively.
The Nextions study summarized in the report, Written in Black and White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills, found that supervising lawyers are more likely to negatively rate the legal writing of an attorney when they believe the author is black versus when they believe the author is white.
If black attorneys are perceived more negatively in areas of critical skill by virtue of their race, and white attorneys are perceived more favorably than equally qualified black attorneys, then it follows that black attorneys will not be hired, promoted, and retained at nearly the same rates as their Caucasian counterparts.
Doesn’t Diversity Training Solve This?
Hiring a few minorities, creating a diversity committee, and providing diversity training may not sufficiently address the unconscious biases adversely affecting minorities. Law firms that hire minorities consistently fail to retain them. A recent survey by Vault and the Minority Corporate Counsel Association (MCCA) found that minority attorneys represented less than 16 percent of employees at the 229 law firms surveyed, yet almost 22 percent of lawyers who left those firms in 2016 were minorities.
A Fordham Law Review article (83 Fordham L. Rev. 2407, April 2015) suggests that diversity committees need more specific goals and authority to effect real change. The article states that diversity training is often short-term and limited to combating explicit biases. This may impede progress by failing to critically examine the complex ways in which implicit bias permeates culture and creates institutional paradigms that exclude minority lawyers. The authors suggest a more comprehensive approach is needed to address implicit bias.
Research suggests that implicit bias is far more prevalent today than explicit bias and accounts for many instances of discrimination. Would it therefore behoove those interested in achieving an inclusive workforce to change strategies and focus their efforts and resources on correcting implicit biases, rather than continuing to use strategies aimed at eliminating explicit bias?
The Myth of Meritocracy and the Autonomous Attorney
The traditional approach to eliminating racial discrimination is the color-blind approach. This approach assumes that partners and associates behave as autonomous individuals, such that their achievement is a function of individual merit. The color-blind approach suggests that racial discrimination occurs only when individuals in power intentionally engage in it.
The reality is something very different.
Juan Thomas, 2017 President of the National Bar Association, advised Loyola University’s Black Law Student Association that what makes a lawyer successful is not the individual’s intelligence, skills, and competence. Rather, it is his or her relationships with others who are in positions to help that lawyer achieve success.
To the extent that white men are the dominant group in society, law firm leaders will bring biases in favor of white men into the workplace. They will view white men more favorably than any other group, leading them to be selected for critical mentorship and assignments that lead to promotion. The relationships that law firm leaders form with members of the dominant group create an environment that allows those lawyers to thrive.
The color-blind approach to racial discrimination, while well-intended, is a barrier to minority inclusion in law firms. The color-blind approach is grounded in dangerous notions of equality and erroneously assumes an equal playing field. It views the organizations and institutions as meritocratic and equal, and instead blames individuals for not “making the cut.” By ignoring the reality of implicit bias, the color-blind approach perpetuates the problem it intends to address.
An Alternative Approach
An alternate and arguably better approach to achieving diversity and inclusion is bias awareness. This approach reflects a relational understanding of achievement, merit, and identity. Raising awareness of bias and using that knowledge to implement organizational change is critical to constructing an equitable, inclusive workplace.
Reducing implicit bias is a two-step process. Begin with awareness (i.e., learn to recognize your own unconscious biases) and then actively challenges those biases. Similarly, creating an inclusive workplace is a two-step process. Start by becoming aware of the real barriers, and then strategically implement structural changes that will help remove those barriers.
Project Implicit, an international collaboration between researchers at Harvard University and other universities, provides a free online Implicit Association Test (IAT). The test measures attitudes and beliefs that people may be unaware of or unwilling to report.
Once individuals become aware of their unconscious biases, there are several techniques they can use to interrupt those biases. Strategies for Confronting Unconscious Bias recommends 14 specific behavior changes that can be employed. One technique is to deliberately expose yourself to images that counter a stereotype, such as focusing on images of highly successful black men. Diversity advocate Verna Myers demonstrates this technique in her TedxBeaconStreet presentation and challenges viewers to overcome biases by walking boldly toward them.
At the organizational level, the creation of an inclusive workplace requires structural changes. This includes examining systems, structures, procedures, and policies, redesigning them to be inclusive, tracking actual results, and holding leaders accountable as part of their job duties.
Next Steps on the Journey Toward Inclusion
Correcting implicit bias will positively impact the legal profession. This includes increasing fairness within the judiciary, hiring the best and brightest associates, and elevating the most valuable firm members to partnership. Conversely, ignoring implicit bias will perpetuate a lack of diversity in our law firms and courtrooms, and a jurisprudence that jeopardizes the integrity of our legal system.
What can you do to address implicit bias?
For an in-depth discussion on transforming your workplace by using a dispute system that replaces discussion of victims, offenders, and blame with a focus on awareness, understanding, and problem-solving, read Fitting the Forum to the Pernicious Fuss: A Dispute System Design to Address Implicit Bias and “Isms” in the Workplace.
For further thoughts on diversity and inclusion, check out The Future is Now for Diversity and Inclusion and Five Steps to Increasing Diversity and Inclusion in Your Organization.
Want to learn more about implicit bias and earn FREE CLE credit? The Commission on Professionalism offers an online course Rebalance the Scales: Implicit Bias, Diversity, and the Legal Profession.