Now imagine that you are no longer alone. The room is full of people, and each person is standing in this same circle, looking at you. However, these people aren’t facing you directly; they are looking at you through those same mirrors that were surrounding you. How do these people see you? These are your outward-facing identities. These are the ways that others view you. These are the judgments about your identity that others make before they even know who you are. These are the identities that others think are important when they look at you. If you are a part of any marginalized community that can be identified visually, bias regarding such identity will likely be experienced here. This is where race and gender usually show up. As you look around this imaginary room, watching these people watching you, you realize these mirrors aren’t falling. The mirrors are not on the ground, not on a stand—they are elevated, being held in place, in the air. Something or someone is holding up these mirrors. What is holding up these mirrors?
Dimensions of Racism and the Looking Glass
As a race trainer, I often use this analogy during my trainings to discuss identity and the four levels of racism. Traditionally, we view racism as stemming from the interactions between two individuals, however, racism happens at various levels. There are four levels of racism, which are personal or internalized, interpersonal, institutional, and systemic.
In my mirror analogy, the judgments we make of ourselves when we are alone in the room looking into the mirrors, the inward-facing identities, equate to the internalized or personal racism. The outward-facing identities, interpersonal racism, occurs when the others in the room are looking at us through these mirrors. To answer the question posed, “what is holding up these mirrors”—people are. The people holding up the mirrors is where our society’s institutional racism is found. These are the policies and practices in institutions that produce inequitable outcomes for people of color and other marginalized groups. What’s holding up the mirrors are the practices and routines of our culture. Whether giving power to perspective, honoring perfection, or defining it as policy these are the supports that keep the mirrors, judgements and inequities in place.
Who are the people holding up these mirrors? In criminal law, we define such people, this society of people holding up these mirrors, as the “reasonable person,” a fictitious person projected to reflect values, perspectives, and conduct of some perceived “normative” version of our society. Reasonable Person Standard, SHRM (2023). This hypothetical person, created by the early English courts, is meant to serve as the average person, a comparative standard, in gauging illegality or liability. Here this reasonable person reflects what we, as a society, value. But how is the reasonable person really defined? The reasonable person, the action of society holding up the mirrors—it is the judging of everything through a white, western, male, able-bodied, heteronormative, cisgendered lens, where anything else is othered and, thereby, discounted. It is a reflection of those in power who largely created the reasonable person standard. This institutional level of racism creates practices and routines that support the nurturing of inequities, judged by this normative that we name the reasonable person.
During the trainings, my analogy continues with the most silent, yet influential entity in the room—the mirror maker—because every perspective in the room is influenced by the mirror maker who we don’t even realize is there. The mirror maker is controlling every view, every vantage point, and every single thought we have. The mirror maker is systemic racism. The maker manipulates the mirrors, so you think you’re seeing an accurate reflection of what’s truly there, but our perspective is skewed. Without us even realizing it, the room full of mirrors that we each imagined is standing in the middle of a fun house. Why is this exercise important, and why do I start with identity?
Every one of us is looking at ourselves, and each other, through this prism of mirrors, which influences how we see ourselves and others, and how we interact with one another based on those perceptions. Until we understand how our perspective is skewed, we won’t turn away from the mirrors to actually see and credit the person standing in the center of the room. It is clear from the current lack of inclusivity in our workplaces that we systemically fail to turn away from the mirrors and truly see the person standing in the center of the room for their authentic selves.
The Looking Glass Reality in the Criminal Legal Workplace
The research around inclusivity in the workplace is bleak. As practitioners in the criminal legal system, our defined workplace is vast. It includes not only the offices of prosecutors and defenders, but also the province of law enforcement and the court system. Each of these entities impacts the inequities faced by both the litigants and the litigators in our legal system. We are all aware of the national statistics regarding the impact of race on defendants in our criminal legal system. According to a 2022 University of Michigan Law School report, “innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.” Samuel R. Gross, et al. Race and Wrongful Convictions in the United States 2022 National Registry of Exonerations (2022). The report details that we see racial disparity negatively impacting Black people in varying degrees for all major crime categories except white-collar crime. Specifically for drug crimes, the increased number of convictions of innocent Black suspects is largely due to racial profiling. But the biases in our system go beyond the defendants.
According to the Equal Justice Institute, jury selection “(c)hallenges for cause result in the removal of people of color at disproportionately high rates. A study involving 1,300 felony trials and almost 30,000 prospective jurors throughout North Carolina found that trial judges were 30% more likely to remove prospective jurors of color for cause than white prospective jurors.” Equal Justice Initiative, “Race and the Jury: Illegal Racial Discrimination in Jury Selection” (2021). The Diversity, Equity and Inclusion Center of the American Bar Association provides some tools on how to address implicit bias with these stakeholders. Implicit Bias Videos and Toolkit, ABA Diversity, Equity & Inclusion Ctr. While these system stakeholders are clearly impacted by bias, the question we will consider today is, what about the litigators themselves?
According to a recent report on the well-being of lawyers in Massachusetts, Black, Indigenous, People of Color (BIPOC) attorneys, unsurprisingly, are most likely to face bias, discrimination, and vicarious trauma in the legal profession. NORC/LCL, Well-Being Needs Assessment (Feb. 2023) [hereinafter Well-Being Report]. This includes microaggressions. Microaggressions are defined as commonplace daily verbal, behavioral, or environmental slights, whether intentional or unintentional, that communicate hostile, derogatory, or negative attitudes toward stigmatized or culturally marginalized groups. Microaggression, Wikipedia (accessed July 27, 2023). Moreover, the report indicates that BIPOC lawyers are less likely to report being treated with kindness and respect by colleagues, having a positive supervisor relationship, or having supportive colleagues.
This Massachusetts report comes on the heels of efforts by the Massachusetts Supreme Judicial Court Standing Committee on Lawyer Well-Being to elevate the lived experience of members of the legal community related to, among other criteria, racial and ethnic identities. The Standing Committee conducted town hall meetings with each of the affinity bar associations in Massachusetts and summarized those findings in a report, which detailed a myriad of disturbing treatment and alarming disparities faced by attorneys of color within the judicial system and legal profession, where justice is our guiding principle. A Report Summarizing Affinity Bar Town Hall Meetings, Law. Well-Being (2021). (Massachusetts SJC Report) The treatment BIPOC attorneys and other legal professionals face includes, but is not limited to:
- microaggressions such as recurring mispronouncing of their names, even after years;
- assuming BIPOC lawyers need to be spoken to in English more slowly;
- commenting on how “articulate” BIPOC attorneys or law students are;
- assuming BIPOC lawyers are young, inexperienced, or unqualified; and
- giving credit for ideas and arguments to white, male attorneys when others previously raised the same points.
These attorneys are repeatedly assumed to be and/or identified by court officials as either criminal defendants or translators. They face comments regarding the appearance of their hair or cultural attire. They experience a lack of support from the judiciary when these incidents are perpetrated by court personnel. These inequities cause BIPOC attorneys to be denigrated in the presence of their clients, often leading to the attorneys’ belief that their clients would be better served by having a white attorney, whose ability and adequacy of legal representation is not belittled by the court and then reflected in the confidence, or lack thereof, of the client.
These statistics are not exclusive to Massachusetts, and how an individual feels is just one of the impacts of this treatment. Discrimination in the workplace has an impact not only on a personal level, but on a professional level. According to a study from Rice University, “racialized history and its resulting structures have worked to push and keep Black employees at the lowest rung on the racial hierarchy.” David R. Roediger & Elizabeth D. Esch, The Production of Difference: Race and the Management of Labor in U.S. History (2012). Compared to white counterparts, Black employees experience disparate access to resources throughout the career cycle, resources that include employment programs, services, and activities. E.g., April Baker-Bell, Linguistic Justice: Black Language, Literacy, Identity, and Pedagogy (1st ed.) (2020); Stella M. Nkomo, Intersecting viruses: a clarion call for a new direction in diversity theorizing ISSN: 2040-7149 (2020).
Black employees also face greater disciplinary sanctions, despite having no facially identifiable difference in the number of allegations of misconduct. Sheryl L. Walter, Erik Gonzalez-Mulé, Cristiano L. Guarana, Ernest H. O’Boyle, Christopher M. Berry, Timothy T. Baldwin, The race discipline gap: A cautionary note on archival measures of behavioral misconduct, Organizational Behavior and Human Decision Processes (2021). They are often evaluated as less-effective leaders Rosette AS, Leonardelli GJ, Phillips KW, The White standard: racial bias in leader categorization. J Appl Psychol. 2008 Jul;93(4):758-77. doi: 10.1037/0021-9010.93.4.758. PMID: 18642982 and experience receiving poor evaluations, the denial of advancement or leadership opportunities, and less-supportive supervision and mentorship. These studies mirror the Massachusetts SJC Report, which found that the BIPOC community in the legal profession experience less supportive work environments overall, including not being treated with kindness and respect by colleagues, less-positive supervisor relationship, and less-supportive colleagues.
Bias, harassment, discrimination, and vicarious trauma have an impact on the well-being of BIPOC attorneys. According to the SJC Well-Being Report, BIPOC attorneys experience high rates of burnout, depression, anxiety, and low satisfaction with life. This jurisdiction is again not unique. This is the adverse experience of BIPOC professionals across the country. While some believe that microaggressions may seem less harmful on the surface in comparison to examples of overt racism, evidence confirms that there is an equally detrimental effect of subtle discrimination on physical, psychological, and work outcomes for the BIPOC community. Jones, K., Arena, D., Nittrouer, C., Alonso, N., & Lindsey, A. (2017). Subtle Discrimination in the Workplace: A Vicious Cycle. Industrial and Organizational Psychology, 10(1), 51-76. doi:10.1017/iop.2016.91); P. Priscilla Lui & Lucia Quezada, Associations Between Microaggression and Adjustment Outcomes: A Meta-analytic and Narrative Review, 145 Psych. Bull. 45 (2019). Studies have shown that discrimination uniformly impacts productivity and sense of safety. It prevents BIPOC employees from applying for jobs, negotiating salaries, and striving for promotions. It contributes to absenteeism, burnout, negative job satisfaction, and mental and physical health issues. Racial microaggressions accelerate aging at the cellular level.
Among people of color, microaggressions are linked to an increased risk of depression and suicide. “Minority attorneys reported higher rates of suicidal thoughts, depression and isolation than their white colleagues, aligning with a previous study by the ABA, which also tied race to mental health outcomes. . . . Roughly 31% of Black lawyers said they have contemplated suicide during their professional career, far and above the 19% of white respondents that said the same.” Dylan Jackson, Attorneys of Color Reveal Alarmingly Higher Instances of Mental Health Struggles, Am. Law. (June 8, 2021) (citing Dylan Jackson, Women and Minority Lawyers Worry “the Pandemic Will Define Their Career,” Am. Law. (Apr. 26, 2021)).
The mental and physical health of BIPOC attorneys is clearly impacted by these biased, aggressive behaviors in both their personal and professional lives, causing racial anxiety that can develop into or add to the experience of racial trauma. Racial trauma is the result of ongoing exposure to racial stressors such as racism, racist bias, discrimination, violence against people of color, and racist abuse in the media that creates an environment in which a person of color feels unsafe simply because of the color of their skin. Racial anxiety refers to the heightened levels of stress and emotion that we confront when interacting with people of other races. Self-care is essential for those who have been subjected to these anxieties and trauma. The resulting harm from bias hinders future interaction and impacts people of color physically and emotionally. In either pervasive instances, or when experienced on a recurring basis in the workplace, this conduct leads to harassment through hostile work environments that may also undermine employees’ sense of safety. People of color experience concern that they will continue to be the subject of discrimination and hostility and that raising issues or having conversations regarding their concerns will not lead to positive change and will negatively impact their careers. White people, meanwhile, can worry that they will be assumed to be racist, leading to defensiveness instead of a desire to be thoughtful and reflective as they engage. To create inclusive workplaces, we must foster a sense of safety and belonging that permeates and transcends the barriers that race creates. To do this, to be inclusive in our workplaces, we must look away from the mirrors to actually see the person standing in the center of the room.
Esteemed psychologist Abraham Maslow’s hierarchy of needs is a motivation theory in psychology comprising a five-tier model of human needs often depicted in a pyramid with the lower needs on the bottom. Saul Mcleod, Maslow’s Hierarchy of Needs, Simply Psych. (July 26, 2023). According to Maslow, safety and security are basic needs. His theory teaches us that we must have our safety and security needs met before we can move to a place of relationship and belonging or respect and recognition. Getting to our highest self, self-actualization in Maslow’s triangle, can only occur once we feel safe and we are in a relationship with one another. These principles don’t change at work. Before a person can become their best self and bring that best self to their work, they must have the lower needs of safety and relationship met. In fact, our motivation to bring our highest self into a situation is directly related to the motivation grounded in having lower needs met first. The feeling of safety in the workplace for the BIPOC community is a primary need, and it is the responsibility of employers to create that safe space. How do you create a feeling of safety in the workplace? I use the acronym CARE. CARE requires that we create a Climate or Culture within our organizations where equity becomes a chief concern; individually, you become Aware of your bias and hold yourself Accountable for your thoughts, actions, and inactions; you work to prioritize the Relationships with those you encounter in work spaces; and Expose yourself to other perspectives, stories, and lived experiences because this will help you to better Examine your decisions.
The Role of Restorative Justice in Supporting a Safe and Healthy Work Environment
So how did I determine that restorative practices are the solution? As a racial equity trainer, I find the need for safety and relationship is foundational to impactful work and must be established in creating an environment to advance an understanding of equity and perspective during race-related training. As a restorative justice teacher, I help students understand how to create spaces where breakthroughs related to trauma and other issues can occur. It was at the intersection of these two experiences that I began to see a solution to workplace inclusivity through restorative practices.
Restorative practices are an approach toward achieving resolution of conflicts that focuses on relationship and community, by addressing harm, needs, and obligations that arise as a result of that conflict. It is a model adopted from America’s Indigenous Peoples and other native cultures’ peacemaking circles and healing practices. It has been used throughout the world in schools and criminal legal institutions to address crimes and wrongs. Today, this approach is becoming more considered in efforts to reshape our system of justice. But more than that, restorative practices shift one’s perspective from focusing on how to address the wrongdoer, instead concerning oneself with addressing the needs, harms, and obligations illuminated by the wrong.
Restorative practices aim to put right harms and wrongs by focusing on harms and needs, addressing obligations, and involving stakeholders, and this is accomplished by using inclusive, collaborative processes. This work needs to be done with an attitude of respect for all. At its best, this approach fosters culture, elevates dialogue, and values relationships. While restorative work can be used to address harm, it can also be used to develop a community and define community values in the workplace before harm occur. This focus on culture, community, dialogue, and relationship influences thought and engagement in the workplace in a way that shifts perspective and nurtures an environment where employees feel more a part of the whole. While restorative practices have been used in places of employment to address workplace conflict with success, what we are discussing requires the building of community through restorative practices before conflict occurs. Building and maintaining community through restorative practices enables conflicts to be resolved, once they occur, at a more satisfactory level for those involved.
Connection circles are a type of restorative practice that brings people together for the purpose of building community. In circle work, participants bring their wisdom and life experience to build connections and community, to generate new possibilities in a way that honors dignity and respect. Circles emphasize connectivity, value contribution, and support emotional expression. In the circle, the wholeness of the individual and the wholeness of humanity are recognized and honored. Circles create restorative communities that can build and maintain relationships, thereby making participants feel safe through nurturing a sense of belonging. This is the place where we focus on building community and developing relationships in the workplace, before harms occur; influencing thought and perspective if and when harm does occur.
“Community circles build communities of trust and respect. The power of community circles is that they offer … the opportunity to express … (oneself). As a result, … (we) are able to identify with … peers. Community circles highlight common successes and struggles that … (we) are experiencing. Empathy often results. Wachtel (2013) suggests that ‘circles give people an opportunity to speak and listen to one another in an atmosphere of safety, decorum and equality.’” Jamie Silverman, The Power of Community Circles, AMLE (accessed July 27, 2023) (citing T. Wachtel, Defining Restorative (2013)).
You can begin looking at restorative practices for your institution by understanding the native cultures that have embraced these practices for centuries. Contacting Native Nations and understanding their practices to gain guidance for your own is the best and most authentic beginning. The internet also provides a wealth of information about courses and institutions where restorative work can be taught or facilitated. Some places to start are Howard Zehr, The Little Book of Restorative Justice (2014); Restorative HR (Nell Derick Debevoise, The Second Responders: How Restorative HR Makes Workplaces More Inclusive and Equitable, Forbes (June 12, 2020)); New Zealand Judicial System (How Restorative Justice Works, New Zealand Ministry of Just. (Dec. 2022)); Suffolk University Center for Restorative Justice.
It is critical to demonstrate your willingness to strengthen relationships and create shared values by building with others in your institution the desire and efforts toward creating a more authentic community, where people can feel safe to express their concerns. Several organizations have created lists and guidelines for addressing workplace inequities, including the Massachusetts Supreme Judicial Court Standing Committee on Lawyer Well-Being. Please visit their website for useful tips and information.
Likely, we are all interested in developing a culture of inclusivity and community in the workplace, not only to produce better places of employment, but to produce better employment outcomes, productivity, and job satisfaction. Studies have shown that inclusive workplaces, where shared ideas and values are encouraged, flourish, leading to improved outcomes in terms of output and creativity for the institutions involved. Yet despite the desire for inclusivity, many struggle with developing and maintaining inclusive spaces where people of color feel included, respected, and valued within the workplace community. Restorative practices provide an opportunity to build community and engage in social and emotional growth as an organization, where each member feels respected, valued, and included. Consider engaging in restorative practices in your organizations and institutions to create more healthy, respectful, and engaged communities in your workplace.
