When we talk about retention, we mean the ability to keep qualified and experienced lawyers over the long term. I think the word retention is misleading, however, because it implies passivity on the part of the firm—as if it were merely a receptacle that “held” the talented employee. Retention is anything but a passive process. It is about investing in individuals, about cultivating skill sets rather than simply hoping for the best, on the one hand, or culling the herd on the other, when economics dictate or an individual’s performance falters.
Frequently you will hear the term retention applied to matters of diversity. As a diversity consultant, I regularly hear a variation of this statement: “I don’t know why [women/people of color/LGBT (lesbian, gay, bisexual or transgendered)/or some other historically excluded group] don’t stay here; we treat everyone the same way.” Treating every individual the same may well be part of the problem. As we will discuss, the presence of implicit bias in a law firm often means that the more everyone is treated the same, the more the status quo perpetuates itself.
Three Structural Factors
Senior partners may say that they want their firm to be welcoming to everyone, yet serious structural issues exist that make it harder for women, people of color and other historically excluded groups to succeed. One of these is the billable hour. With such enormous attention placed on this aspect of the bottom line, nonbillable tasks, such as mentoring, training, evaluating and implementing a sustainable diversity effort, are often ignored or pushed to the side—much to the detriment of the firm’s ultimate profitability.
Another issue that obstructs hiring, training and ultimately retention of underrepresented groups in the senior ranks of a firm is a very thin management structure. Traditionally, very few people have been “managing the shop” and its human resources. A change in this area has begun as more firms have installed workflow coordinators, hired diversity directors and added staff to their professional development departments. However, the most important people in a law firm remain the lawyers—those who bill time. They have the most influence over the careers of attorneys from historically excluded groups, yet most of the people heading up departments or practice groups earned their positions by being great lawyers and business generators. They often know little about managing people or cultivating inclusion in their spheres of influence.
In addition to a thin management structure and the tyranny of the billable hour, there is planned attrition, otherwise known as the “up or out” system, which assumes that losing attorneys is just part of how business works. But study after study shows that attrition is higher and the average tenure is lower for female attorneys and attorneys of color when compared to their white male counterparts. These people from historically excluded groups also report more dissatisfaction in their shorter careers in law firms.
While the three structural issues mentioned above affect all talent, no single factor is responsible for a lack of diversified retention more than implicit bias. Implicit bias refers to the stereotypes and assumptions we have that are automatic and unintentional. These biased attitudes get unconsciously embedded into an organization’s culture and systems, and impact how opportunity is distributed and talent is evaluated. Implicit bias is difficult to see, hence its name. It affects everyone in the workplace, but especially those who are not well represented in positions of power.
Below are five common unconscious and unintentional biases that I have identified and parsed in my book Moving Diversity Forward: How to Go From Well-Meaning to Well-Doing. I frequently see these implicit biases operating in the legal workplace and have included suggestions for how they can best be offset.
1. In-Group Favoritism
In-group favoritism is a bias toward assisting and giving opportunity to others who are part of your own group. While in-group favoritism may appear blameless, in effect it restricts the allocation of what may be scarce resources (jobs, promotions, etc.), effectively discriminating against those who are in another group. When an in-group plays favorites, it makes it difficult for the entire organization to achieve equal opportunity.
Countermeasures: When making decisions about hiring, evaluation and promotion, try to apply standards consistently. Consider the entire list of people in your department or section who could take on a particular opportunity. Whom have you been missing? Who hasn’t had an opportunity to take on this kind of project recently? If you learn to rotate responsibilities, you may be avoiding bias while strengthening the capabilities of your whole team. If you only use your mental list, however, you might find yourself leading with your biases all over again. We may know more quickly that we are discriminating against someone than when we are discriminating for someone else. In the long run, both behaviors are antithetical to true diversity.
2. Guilt by Association
Guilt by association occurs when those in positions of power have had limited experience with historically excluded groups in the workplace—and those experiences have not been entirely positive. I often hear of the “spectacular failures” of a particular woman or person of color in a law firm—and these are always presented as if the failures were caused by the individual alone, with no fault attributed to the organization. Worse yet, each individual from that group, no matter who they are, gets painted with the same negative brush of failure.
Countermeasures: Notice, count and acknowledge the “spectacular failures” that your firm has had with individuals in the majority. My experience is that the percentage of such failures is usually very similar across the board. Removing the guilt-by-association implicit bias allows each individual to be evaluated on his or her own merit, rather than by a presumption against him or her because of group identification.
3. The One-Mistake Rule
Everyone makes mistakes; what we may not realize is how minorities have the experience of seeing their mistakes magnified and their accomplishments minimized—so much so that one mistake can sometimes fix a negative opinion of an individual in a supervisor’s or employer’s mind. This is only possible, of course, if the implicit bias was lurking there all along. I call this the one-mistake rule, a negative assessment made hastily or out of context.
Countermeasures: Ask yourself: If this person were in the majority, how would I evaluate this situation? Has someone made a mistake that confirms your stereotype of his or her group in your mind? Do you remember being a little concerned or nervous about the person’s ability to do the job even before he or she started the project? Based on what? Are you attributing a certain mistake to a person, when perhaps you should look more closely at the entire situation—for example, timing, instructions and expectations—and all of the other people involved? What about the other positive things this person has done? Is the ledger on both sides being compared fairly?
4. The “Prince” Syndrome
The “prince” is an individual from a historically excluded group in your law firm who has reached the highest levels of the institution. He or she is charismatic, able to get along with everyone, industrious, even-tempered and able to put those in the majority at ease. A managing partner once confided to me his frustration over his firm’s failure to make more black partners. He said earnestly, “We have X [a black partner]. If everyone could be like X, we wouldn’t have this problem. X is a prince.”
Countermeasures: The problem with this reasoning, of course, is that not every white partner in this particular firm was a prince, either. Many had been able to progress by being capable, while not necessarily being superstars. Insisting that individuals from a historically excluded group perform better or have higher credentials than others is actually an attempt to overcome unconscious assumptions about the inferiority of their group—thus its status as an implicit bias.
5. Sloppy Sentimentalism
Sloppy sentimentalism happens when a person in the majority finds it hard to give negative feedback to supervisees from historically excluded groups or to hold them accountable for their behavior. It is also demonstrated when the supervisor gives such an employee less challenging work assignments or responsibilities, even when there is no evidence that the employee isn’t capable of doing higher-level work.
Countermeasures: Establishing a fair set of criteria for work performance and then applying those criteria fairly is crucial. For example, once you have articulated a set of competencies for hiring and promotion—including for promotion to the highest position in the organization—you can’t and shouldn’t expect more or less from a member of a historically excluded group. Between the two extremes of sentimentalism and suspicion lies a path of judicious interaction that in turn enhances the value of an employee and his or her motivation for excellence.
Acknowledging What We Can Change
Retaining women attorneys and attorneys of color, those from the LGBT and disability communities, and from other underrepresented groups means creating an environment that causes them to be more productive rather than less, that enhances their performance rather than lessens it. Because there are such difficult structural impediments to retaining and developing talented attorneys of all backgrounds in law firms, we seem to throw up our hands and decide nothing can be done. Certainly, we can’t change on our own the billable hour model that values hours over many other intangibles or the flat partnership structure that makes it hard to create or reinforce change. However, implicit bias is something we can do something about.
By becoming aware of our implicit biases, we can “bias-proof” our organizations, beginning with our role in them—the way we do things. Systemic change is not easy, but we can start by being honest about our own biases and taking steps to counter them. If each individual undertakes this work, more of those from underrepresented and traditionally excluded groups will feel included and invested in. Their workplaces will cause them to stay rather than to leave prematurely. The retention of employees from historically excluded groups in turn adds tremendous value to a firm because of the cohesion, equitability, richness, perspective and expanded client base that such a diversified employee base brings. Remember, however, that retention is not a passive act. It does not happen without our willing it. To achieve retention, we must take the explicit and unbiased actions necessary to retain.