March 20, 2020

Changing Hallway Behavior: How to Interrupt Implicit Bias

Ellen G. McGinnis, Jennifer Reddien

IN BRIEF

  • The work of diversity and inclusion professionals and formal training within an organization to change biased behavior certainly has its place.
  • However, without an army of “allies” up and down the ranks effecting change, efforts to de-bias systems and processes have little hope of success.
  • How do the small actions of such allies have such significant, long-term effects?

Law firms and in-house legal departments have moved past mere recognition of the importance of diversity and inclusion (D&I) to implementing widespread programs aimed at curbing biases that can stand in the way of diversity goals.[1] Formal training programs can only go so far, however. Law firms and legal departments also need employee buy-in on the necessity of giving and receiving real-time prompts aimed at thwarting biased behavior before it takes effect.

Many organizations require their employees to participate in diversity training. Most training starts with the concept of “implicit bias”[2] and seeks to educate employees about its existence and prevalence in the workplace.

The goal of the training is to empower employees to reconsider in real time how they respond to and judge others, thereby “interrupting” their potential biased behavior from taking effect. Training sessions often demonstrate scenarios of clearly biased behavior as examples of what not to do. Sometimes participants engage in role playing to work out better responses, but formal training tends to be infrequent, in group settings, and fairly passive. When mandatory,[3] the audience may not be sufficiently attentive and invested in the desired outcome. It is imperative that law firms and in-house departments educate employees and evaluate organizational procedures for reducing bias; however, without setting the stage for fundamental change in “hallway behavior” by enlisting and educating allies in all ranks of the organization, no formal program is going to move the needle on D&I.

Identify Bias

It will take a lot of work to ensure that sufficient numbers of lawyer and nonlawyer staff internalize the necessity of a truly diverse workforce, which is the first step toward ultimate success. First, they must understand that bias exists, everyone has it, and it has an effect.[4] Next, lawyers and staff must believe that the organization cares about diversity, that a diverse workforce is fundamental to the success of the firm or department, and that their personal success depends on their participation in achieving diversity goals. We know how to teach all of this: lots of evidence-based research on effective training is widely available.[5] Firms and law departments can, with sufficient analysis and thought, hardwire systems to de-bias hiring, evaluation, and promotion to make better decisions and to provide incentives for employees to promote diversity.[6]

In 2018, the American Bar Association (ABA) and Minority Corporate Counsel Association (MCCA) published a report outlining four types of gender and racial bias in the legal profession: (1) “prove-it-again” bias, (2) “tightrope” bias, (3) “maternal wall” bias, and (4) “tug-of-war” bias.[7] The report also provides a comprehensive picture of how implicit gender and racial bias affect the legal workplace and workplace processes. In part, the study revealed that bias is pervasive in the legal workforce but, significantly, it can be interrupted.

Interrupt Bias

Assume there is employee buy-in and a recognition of bias. Joan Williams, a leading researcher in work bias, notes that although “bias trainings remain important to educate others about bias . . . the key is to arm bystanders to interrupt bias, so that the people experiencing bias don’t have to carry that burden alone.”[8] This is where allies come in.

We observe that potential allies are everywhere.[9] Many men[10] are intellectually committed to gender equity but are under-educated about their own bias and don’t know how to take action to make a difference. What is needed is a grassroots, “hallway” effort in which individual employees are trained to identify and interrupt their own personal biases and taught how to address observed bias in others in a work environment in which all employees have “given permission” to engage in bias interruption. This will set the stage for the success of revamped organizational processes aimed at hiring, retention, and promotion for a more diverse workforce.

Firms that want to use allies will be more successful if they get explicit “permission” from employees to accept guidance on their behavior. If each employee affirmatively agrees that D&I efforts are important and that it is acceptable for other employees to point out when one may be acting out of bias, resistance to corrective action is reduced. The prompt becomes the content of the discussion, and not whether one person has the right to hold another accountable.

Central to these efforts is ally training. Learning how to be an ally takes time,[11] but a commitment to shorter but frequent sessions can be an effective approach. Organizations must identify potential allies and arm them with both the “antennae” to detect possible bias and the language to draw out discussion with colleagues. This could mean intervening and taking a moment to discuss a situation.[12] An example of an intervention would be having a colleague say, “Jane did a terrible job on that assignment.” If the listener simply says, “That’s too bad,” both the speaker and the listener leave with the view that Jane is not good at her job. If, however, the listener asks, “What did she do?” and follows up with, “What did you do? Did you speak with her about it?” then the listener may find there is more to the story. Perhaps what really happened is that Jane did not meet some unspoken expectation but did in fact complete the actual assignment timely and well. Allies can learn effective ways to assess the situation and help redirect that assignment interaction and interrupt future bias.

Organizations need not rely only on D&I professionals and formal, intermittent training to change behavior; they can instead enlist an army of allies to effect quotidian change. Without allies, efforts to de-bias systems and processes have little hope of success. With them, we will have engaged the exponential power of small actions to have significant, long-term effects.

[1] Ellen McGinnis is a partner in the law firm of Haynes and Boone, LLP, the co-chair of the Fund Finance Practice Group, and serves in multiple management positions, including on the firm’s board of directors and as the chair of the Admission to Partnership Committee. Jennifer Reddien is the director of diversity and inclusion at Haynes and Boone, and frequently speaks and writes about diversity and inclusion in the legal profession.

[2] Implicit bias refers to the attitudes and stereotypes that affect our understanding, actions, and decisions in an unconscious manner. Kirwan Institute for the Study of Race and Ethnicity, The Ohio State University, State of the Science: Implicit Bias Review 2015. The terms “implicit bias” and “unconscious bias” are often used interchangeably. Although some researchers note differences between the two terms, the legal field tends to use the term “implicit bias” rather than “unconscious bias.”

[3] We endorse mandatory training but recognize that without strong efforts to persuade lawyers that it is essential to their success, they are unlikely to become advocates for taking action.

[4] See, inter alia, the work of Professor Jerry Kang at UCLA.

[5] See, inter alia, resources at Catalyst, Deloitte, Harvard Business Review, and Paradigm4Parity.

[6] Iris Bohnet, What Works: Gender Equality by Design (Harvard University Press, 2016).

[7] “Prove-it-again” bias refers to the need for women and people of color to work harder than the majority to prove themselves; they may feel that their work product must be better than the majority’s work product to receive the same recognition. “Tightrope” bias describes the narrow range of behavior expected of and deemed appropriate for women and people of color. Women often report that they feel pressure to behave in feminine ways and that they are assigned more administrative tasks than men. “Maternal wall” refers to the bias against mothers. Many women report being treated “worse” when they return to work after having children. They find they are passed over for promotions and receive low-quality work assignments. “Tug-of-war” refers to the conflict between disadvantaged groups that may result in bias from the environment. For example, in male-dominated fields, many women note feeling like they are in conflict with other women.

[8] Joan Williams et al., You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession, American Bar Association and Minority Corporate Counsel Association, 2018.

[9] David G. Smith & W. Brad Johnson, Lots of Men are Gender Equity Allies in Private. Why Not in Public?, Harvard Bus. Rev., Oct. 13, 2017.

[10] As a shorthand, we address this in terms of gender, but the concepts apply to all majority/minority groups.

[11] In a remarkable commitment to D&I, the North American sales division of Rockwell Automation engaged all of their people managers, mostly white men, in an extensive program run by White Men as Full Diversity Partners leadership development group, which began in some cases with a three-and-a-half day residential program. See Catalyst, Report: Calling White Men: Can Training Help Create Inclusive Workplaces?, July 18, 2012.

[12] See, e.g., Kerry Patterson, Joseph Grenny, Ron McMillan & Al Switzler, Crucial Conversations: Tools for Talking When Stakes Are High (McGraw Hill, 2002) (among other things, a “how to” on holding effective conversations about crucial issues).

Ellen G. McGinnis

Haynes and Boone

Ellen McGinnis is recognized for her critical thinking in structuring, and practical advice in execution of, financing transactions for lenders, focused in particular on subscription-secured credit facilities, having worked on the product since its initial development in the late 1980’s. Ellen is co-chair of the firm’s Fund Finance Practice Group, for which Haynes and Boone is trusted counsel for U.S. and foreign commercial and investment banks as lenders to private equity funds. She has recently represented a number of clients in hybrid collateral facilities, and works on many of the practice’s international and multi-currency transactions.

Jennifer Reddien

Haynes and Boone

Jennifer Reddien has spent much of her career pursing diversity and inclusion efforts. In addition to her background and personal experiences, Jennifer’s passion for equality makes her an effective and invaluable leader as the Director of Diversity and Inclusion at Haynes and Boone. Jennifer’s charge is to build upon the firm’s current award-winning diversity initiatives by strategizing, elevating, implementing and executing the firm’s diversity plan. She closely monitors progress and holds the firm accountable for results.