May/June 2019

Managing

Implicit Bias: A Hidden Obstacle to Exemplary Firm Culture

Thomas C. Grella

The weekend before I completed this column, it was my privilege to walk my daughter down the aisle. Rebekah met her fiancé while at college in Winston-Salem, North Carolina. Though he had lived in the United States from the first day of his freshman year in high school through finishing his master’s at Syracuse University, Sungju Moon is a South Korean national. The married couple will initially live in Seoul, South Korea, as Sungju fulfills his mandatory military service. As I have gotten to know him over the last seven years, I have come to learn that Sungju has from time to time, as a Korean national living in the United States, experienced a kind of discrimination that is not readily apparent to those around him, commonly known as implicit bias.

Biases that are implicit are ones that we either are not aware of or are mistaken about the source of a thought or feeling we are having about someone else. These biases come in the form of attitudes or stereotypes.

I have written many times about the importance of culture to the long-term success and viability of a law firm, and that culture is not necessarily what you say it is on your website but is created by word and action. Obviously, intentional words and action can do much to either support or harm desired culture. Implicit bias, however, is not always readily apparent, and when created, supported or condoned by firm leadership (perhaps implicitly itself, through inaction), it can do much to harm the organizational culture that firm leaders otherwise work to achieve. Recognizing this potential culture killer, law firm leaders might consider a few actions if their desire is to be on the leading edge of addressing this oft-hidden problem and assure that it isn’t working counter to otherwise laudatory efforts.

Leadership Priority

A prerequisite to the success of most law firm cultural achievements is firm leadership support. Spending valuable leadership time recognizing the existence of, and addressing, implicit bias is a hard sell to owners who demand short-term results, production and profitability. If you are as convinced as I am that implicit bias can have a damaging effect on firm culture, the support of firm leaders must be achieved through education. Implicit bias has the potential to not only negatively affect relationships among the firm team but also with clients and those within the communities served.

Conversation/Education

At my firm, leadership buy-in was the starting point in putting together a plan to make implicit bias an issue of priority. Similar to experiences in other organizations, from time to time our firm has had to deal with an overt bully or bigot who simply has an improper hierarchical view of the world. In my view, however, that is not the norm, and our firm management committee rightly believes that most of the bias issues we face as a law firm are of the implicit nature.

As I’ve occasionally mentioned in this column, our firm has moved away from conducting an annual lawyer “boondoggle” retreat and has now instituted an annual event attended by every employee. Some years it’s on-site, in others off-site. This year it was on-site, with implicit bias training as the theme of the whole day, devoted to both education and communication. We were aware of many well-known national experts whom we considered as potential facilitator educators. As would likely be the case for most of the readers of Law Practice, however, we found that national experts come at great financial cost, and the buy-in we had achieved for this important issue unfortunately came with a minimal expense commitment from firm owners.

What we discovered, however, is that there are less expensive alternatives in implicit bias education that many smaller firms might consider. For our firm we found an adjunct professor from the University of North Carolina School of Government, James Drennan, who is an expert educator in the area of implicit bias. He has been working for years on this issue with the state court system. He was willing to present to our firm an informative program, using interesting, entertaining and thought-provoking visual and video aids, including audience participation and group communication. The materials that he provided indicate that the topic of implicit bias has been a priority at the National Center for State Courts for over 10 years. A free publication titled Implicit Bias: A Primer for Courts, by Jerry Kang, is available online at its website.

We found that resources and experts are available for any size law firm to take advantage of. It turned out for our firm that this priority did not have to come with a huge price tag but simply a commitment of time and attention to an important issue.

A Mentoring Program

My comments that follow assume you have some type of mentoring program at your firm. If you don’t, and you have more than just a few lawyers, you need to establish one. The specific comprehensive details of a successful mentoring program are a topic for another day. Regarding the concern of implicit bias as you review your existing program, or establish a new one, consider the following factors.

Match wisely.

Successful mentorship programs hinge on appropriate matching of mentors and mentees. There seems to be a tendency to match mentors with mentees who are most like themselves when it comes to personality and practice area, and also such immutable characteristics typically tied to implicit bias (sex, race, nationality, etc.). Firms truly desiring to achieve a diverse workforce, leading to a diverse and robust client base, will struggle unless they understand that when biases shape the mentorship program, members of groups who are already underrepresented or disadvantaged may have limited opportunities to mentor or to experience the benefits of practice advancement desired as a result of successful mentor-mentee relationships.

Mentor training.

Those who offer their time and energy to mentor others usually desire to have that time used in the most effective manner. Implicit biases held by mentors can negatively impact effectiveness. Assumptions and beliefs that have worked in a mentor’s own professional life may not benefit a person being mentored years later. Firms desiring to gain the most from their programs must provide mentors with education that helps them lead effectively by:

  • understanding the importance of empathy in the relationship.
  • understanding the different relative positions of mentor versus mentee and the importance of providing relevant advice given the mentee’s unique present circumstances.
  • listening first, and asking questions second, before providing advice, and resisting the tendency to solve a problem by using a typical “how I did it” or “this is the way we do it around here” response.

Commitment and Accountability

This last item is related to the first in the list immediately above. Firm leaders who say they are committed to addressing implicit bias must establish a means of accountability. As with any strategy, this includes an understanding that such a commitment:

  • requires permanent change and an understanding that it is not just a fad.
  • is important not just because it will ultimately lead to financial success but because it is the right thing to do.
  • must be supported within the firm reward systems.
  • requires adherence to agreed-upon standards as a condition of continued employment.

I have read that even the most well-intentioned people are affected by implicit biases. We bring them into the workplace, and they are reflexively triggered without our knowledge. Unconcealable, they impact many areas of business, including culture. If this is true, can your law firm afford to ignore it?

Thomas C. Grella

Thomas C. Grella is a writer and speaker on practice management topics and a past chair of the ABA Law Practice Division. He practices law with McGuire, Wood & Bissette, PA in Asheville, North Carolina, and is a former managing partner, having served in that position for 12 years. tgrella@mwblawyers.com

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