Vol. 40, No. 1

How to fight implicit bias? With conscious thought, diversity expert tells NABE

by Marilyn Cavicchia

Do you think you’re “colorblind?” Gender neutral in your thinking? Unbiased toward sexual orientation, disability, and other differences?

If so, then Sharon E. Jones would like you to think again, and to think more often—that is, to deliberately and consciously focus on differences and on your biases. Why? Because if you don’t, she told attendees at the 2015 Annual Meeting of the National Association of Bar Executives in Chicago, your subconscious will guide you—and no matter who you are and how much you consciously reject such ideas, your subconscious is full of biases.

“[Unconscious biases] will control you unless you control them,” said Jones, president and chief executive officer at Jones Diversity. “They are at play in all aspects of our lives.”

In order to manage all the information and stimuli it receives each day, Jones explained, each person’s brain forms “schemas,” which are frameworks to help classify and organize the information. In fact, she noted 98 percent of the brain works without “express cognition”—that is, conscious thought.

Those frameworks are shaped by our backgrounds and life experiences, and also by American society, in which people of different races and ethnicities often live separately, and in which we are constantly exposed to images that convey and foster bias, Jones said.

How can you strike back against those biases? That’s where becoming and remaining aware of bias comes in, Jones said: You can “disrupt your automatic pilot”—which can lead you to act on your biases even if you don’t intend to—by “making more things conscious.”

And the work of consciously noticing bias and seeking to decrease its power is something that can never stop, Jones said, likening this type of work to the effort it takes to get and stay in shape. Not long ago, she recalled, Jones asked her personal trainer when she could stop working out regularly.

The trainer’s response: “You’re not done until you’re dead.” Likewise, Jones believes, bar leaders and staff can never stop talking about bias and working toward eliminating it within the profession and the association.

Take a tip from the symphony—and football

“You don’t have to have a negative intent in order to have discriminatory outcomes,” Jones said; a bar association or a law firm might believe itself to be a pure meritocracy, striving to hire the best candidate regardless of race and other factors, but still have a screening process that’s rife with bias.

Jones pointed to two very different fields that have worked to eliminate bias from their selection process: the symphony and football.

It used to be that symphony audition judges could see the musicians and thus, knew their race, gender, and other characteristics, Jones explained. Now, many symphonies conduct auditions with a curtain separating the judges from the musicians, and the floor is carpeted to make it more difficult to discern gender from the sound of the footsteps.

Once judges were only able to choose based on sound quality, many symphonies very quickly became much more diverse, Jones said. An important takeaway, she noted, is that if judges had been asked before whether they were trying to exclude anyone, they would have said, “Absolutely not” and that they were “just picking the best.” This illustrates the fallacy that any field is a pure meritocracy, Jones said, free from any bias that needs to be consciously “disrupted.”

As for football, Jones cited the Rooney Rule, which requires National Football League teams to include at least one minority candidate when they’re hiring a head coach or other senior position. This has helped the NFL increase diversity in those positions, Jones said, even though it doesn’t set any quotas or other hiring requirements apart from a minority candidate simply being considered.

The same week that she spoke, Jones noted, Facebook announced that it would start using the Rooney Rule in its own hiring process. Speaking of rules, Jones listed five that can help diversify the profession and the bar association. They follow below.

Rule 1: Be intentional regarding hiring and board outreach.

Our unconscious impulse, Jones said, is to seek a “mini me” with whom we’ll feel comfortable. In professional settings, this is often expressed as seeking someone who’s a good “fit.”

Be very careful with the word “fit,” Jones cautioned: Can you articulate what it means, in a way that is completely devoid of bias? If not, then “fit” might not be an attribute you should look for when screening candidates.

How else can you eliminate bias in hiring? Jones cited two firms in London that use a blind resume process in which the interviewers do not see certain information, such as where the candidate went to school. Another idea, from Google, is to ask all candidates the same set of questions.

Previously in her career, Jones was the first black lawyer at a company where an executive involved in the hiring process had many biases that he failed to acknowledge. For example, he asked Jones—who had graduated from Harvard Law 15 years prior—what her LSAT score was and whether she’d ever been arrested.

Jones proposed a system for new hires in which her vote would earn someone a “fast forward” to the next step in the screening process. Two candidates whom she moved forward in this way are now vice presidents at that company, she added.

Rule 2: Be intentional regarding mentoring relationships.

Even though many Americans strive to live and work in diverse settings, everyday life still tends to be very racially segregated, Jones said, which means many people have little chance to disrupt their brain’s schemas through daily interaction.

“Research has shown that contact is one of the best ways to break down negative stereotypes,” Jones said, explaining that ongoing, positive interactions with individual people of a particular race, ethnicity, or other group can help counteract any unconscious biases toward that group.

If you have limited contact with people who are different from you in some way, Jones advised, look for opportunities to change that. At a luncheon or other event, sit with someone you might not ordinarily, she suggested, and when establishing formal or informal mentoring relationships, push to resist the natural tendency for people to gravitate toward others who are “just like us.”

Rule 3: Accountability and goals are important.

It’s great to have aspirations, Jones said, but it’s often goals with actual numbers attached to them that really get things done. There are many different aspects that your bar association could choose to work on, from the pipeline to attrition rates to promotion levels.

Jones recommended obtaining national numbers, state benchmarks, or both from NALP (the preferred name for the National Association of Law Placement) and using those to help set goals.

For a bar association, Jones added, “Recognition and awards may be the best motivator.” But don’t just think in terms of awards to law firms for their diversity efforts, without ever looking at diversity within the association and its staff, she said—it’s important to “teach by leading.”

Rule 4: Work to eliminate microinequities.

“Microinequities” are the countless “little things” that can add up to quite a lot, Jones said—all the different ways that bias and discrimination can slip into language, images, and daily habits even if we don’t intend them to.

For example, perhaps in a meeting, a woman makes a point, and then a man reiterates it—and everyone praises the man. Or a team-building event involves hockey, hunting, or some other sport that isn’t familiar or comfortable for everyone. Or someone tries to include spouses and partners by saying, “Feel free to bring your wife.”

As for images, do you have a wall or hallway at the bar association with photos of past presidents from another era, when the leadership was predominantly white and male? If so, then it may not be sending the kind of message you strive for today, Jones said; she recommended expanding the idea of what the wall is for and what photos belong there, so that some of the people featured are women and people of color.

Rule 5: Succession planning should be intentionally diverse.

One great way to build diversity in leadership, Jones said, is to have co-chairs in some positions, in which at least one member of the pair is a person of color, a woman, or is diverse in another way. Their progress as leaders should be carefully tracked to avoid lapses in diversity; after all, Jones reiterated, continuity is key, rather than thinking that diversity is something that can be accomplished once and checked off the list.

Be as persistent as the hummingbird in an African fable, Jones suggested. After a forest fire, she kept going back and forth to the river, carrying a tiny drop of water each time. When the other animals asked what she was doing, she answered, “I’m doing all I can,” Jones recalled. “That’s all any of us can do.”