March 31, 2016 Practice Points

Self-Sabotaging: How Implicit Bias May Be Contributing to Your "Can't Find Any Women or Diverse Associates" Hiring Problem

Implicit bias is formed by unconscious attitudes or stereotypes that affect our understanding, actions, and decisions

by Candace R. Duff

Implicit bias is formed by the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. Unconscious in that you're not sure why you have that attitude or stereotype but you do. To begin, in no way is this practice pointer suggesting the bar should be lower for women and diverse applicants. The purpose of this practice pointer is to provide conversation starters—to start an internal conversation of what might be getting in the way of supporting your diversity values.

Bigger pool. Did you know that changing the racial identify of "author" on a legal memo resulted in different evaluations and the finding of more errors? Perhaps the beliefs you might hold on which is a better law school or the minimum GPA you'd accept may not be the best predictor for someone's actual performance as an attorney in your firm. Consider applicants from other law schools and perhaps lower GPA standards (because of implicit bias in grading). For example, if you were looking for someone to join a personal injury practice group, you might look more closely at his or her performance in torts & trial practice and advocacy. You may not care that he or she only earned a B in con law.

Redacting names and volunteer association names. Did you know that once orchestras started using blind preliminary auditions, a woman's chance of moving forward in the process increased 50 percent? Before reviewing any resumes—consider having a friend redact anything that might suggest gender, race, or ethnicity. Studies have demonstrated that in evaluating members of a stereotyped group, individuals pay more attention to and actually seek and remember more information that is consistent with the stereotype. Ironically, when a decision maker "believes himself to be objective, such belief licenses him to act on his [implicit] bias." Implicit Bias and the Legal Profession's "Diversity Crisis": A Call for Self- Reflection, Nichole E. Negowetti, Nevada Law Journal, Vol. 15:930, 2015. Redacting may actually provide you with more candidates to consider from the outset.

Balance an interview with practical demonstration. Did you know that interviews are poor predictors of job performance because we hire people we think are similar to us rather than those who are objectively going to do a good job? Id. You might consider creating a "test" for each applicant specific to the objective needs of the position. For instance, if you require strong research and writing skills, create a research and writing exercise (similar to what you would give a first year associate) that would demonstrate the person's ability to research and write on your topic (not one that was already critiqued through a legal writing course). Alternatively, if you are looking for strong advocacy skills, consider having two candidates argue a different side of an issue (by assigning them different opposing pleadings). By doing more than just interviewing, you are giving yourself more opportunities to overcome any stereotype you may have.

Mentoring law students. Did you know student bar associations look for mentors and advisors to help build skills, gain experience, and navigate through the culture of our profession? Consider getting involved in one of these associations. It would give you a leg up on the competition and additional insight to the true qualities of student members.

For more information on implicit bias, please go to the Section's Implicit Bias Initiative. Also, I'd like to hear your ideas and comments. I can be reached at laura.mclaughlin@logan.edu.

Keywords: commercial litigation, business litigation, diversity, associate hiring, hiring bias, implicit bias, recruitment

Laura McLaughlin, Esq. is with Logan University in Chesterfield, Missouri.


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