December 21, 2012 Articles

Reality Check: Combating Implicit Bias

By J. Dalton Courson

Many readers may hold an impression that law is a common profession for the lesbian, gay, bisexual, and transgender (LGBT) community. The idea may stem from popular sitcoms, because two of TV's most beloved gay characters are Will Truman from Will & Grace and Mitchell Pritchett from Modern Family, both lawyers. Other television shows have featured gay, lesbian, or bisexual attorneys as characters, including Smash, Brothers & Sisters, Law & Order, Ally McBeal, Queer as Folk, and L.A. Law. Yet, despite the number of LGBT attorneys on TV, recent data published by the National Association for Law Placement (NALP) suggest that, in reality, members of the LGBT community are disproportionately unlikely to become lawyers and that LGBT law school graduates appear more likely than straight peers to leave their firms and perhaps exit the profession.

LGBT Demographics at Large and Among Lawyers
Professor Gary Gates, a demographer with the Williams Institute at the University of California, Los Angeles, recently published an article in which he analyzed US-population-based surveys for data on the LGBT population. After examining several credible surveys, professor Gates concluded that, on average, some 3.8 percent of Americans self-identify as lesbian, gay, bisexual, or transgender. See Gary J. Gates, "LGBT Identity: A Demographer's Perspective," 45 Loy. L.A. L. Rev. 693, 698 (2012). Within the lesbian, gay, and bisexual portion of the population, roughly half identify as lesbian or gay, while the other half identify as bisexual. Between 0.1 and 0.5 percent identify as transgender. These percentages do not account for LGBT individuals who remain in the closet and do not openly identify as LGBT.

Contrasting Gates's analysis with law firm statistics published by NALP indicates that LGBT individuals may be less likely to go to law school than their straight peers and less likely to remain in the profession. According to the information that law firms provided to NALP, the percentage of openly LGBT lawyers in law firms is half the rate of LGBT individuals in the overall population. In 2011, about 1.9 percent of lawyers in law firms that reported to NALP were identified as LGBT. "Most Firms Collect LGBT Lawyer Information, LGBT Representation Steady," NALP Bulletin, Dec. 2011. Moreover, senior lawyers are even less likely to identify as LGBT. About 2.8 percent of summer associates and 2.4 percent of associates identified as LGBT, but only 1.4 percent of law firm partners identified as LGBT. An analysis of the data by firm size shows that the largest law firms were the most inclusive—2.5 percent of lawyers at firms with over 700 lawyers identified as LGBT, while only 1.2 percent of lawyers at firms of 100 or fewer did so. Another interesting fact: NALP's survey indicated that about 60 percent of openly LGBT lawyers live in one of only four cities: New York, Washington, Los Angeles, and San Francisco.

Thus, the percentage of LGBT-identified attorneys at law firms is low compared with the percentage of LGBT-identified individuals in the general population, and the LGBT legal community is concentrated in a few major cities. And it's not just in law firms that LGBT lawyers are underrepresented in the profession. For example, according to a recent news report, there are still only four federal judges who are openly LGBT. Bob Egelko, "Michal Fitzgerald 1st Openly Gay U.S. Judge in CA," SFGate, Mar. 16, 2012.

Implicit Bias
What explains these statistics? There are no easy answers, and considering the continuing failure of Congress to enact the Employment Non-Discrimination Act, there is no doubt that overt discrimination remains a significant hurdle. But I suspect that one factor is that even after LGBT law school graduates are hired, they continue to struggle against implicit bias. The term "implicit bias" was developed by psychologists to include unconscious stereotypes and attitudes that individuals use for quick thinking. These "shorthand schemas" are "thoughts about people you didn't know you had." Jerry Kang, Nat'l Ctr. for State Courts, Implicit Bias: A Primer for Courts (Aug. 2009). At times, social stereotypes can lead to negative implicit bias. In research studies, LGBT individuals and other minorities continue to be perceived more negatively than nonminority counterparts on measures of subconscious, implicit bias—even among individuals who do not consciously discriminate.

Over the course of a career, the effects of implicit decision-making can lead to significant, detrimental consequences for the careers of LGBT lawyers. For example, in a law-firm setting, straight partners handing out choice assignments may subconsciously feel more comfortable working with straight associates and thus seek their assistance first, leading to fewer billable hours and less challenging work for LGBT lawyers. Because LGBT attorneys are less likely to choose traditional, opposite-sex family arrangements, LGBT lawyers and their straight counterparts can have social differences that might reinforce implicit biases in some settings. Or a referral source may have a subconscious concern that an LGBT colleague might be perceived negatively by the client or in a courtroom, and choose to pass the case along to a straight colleague.

For those readers interested in learning more about implicit bias, the Section of Litigation has devoted substantial resources over the past few years to tackling the issue of implicit bias, and the Section recently launched a website devoted to this issue.

The lesson from this research is that as LGBT litigators, we have to recognize that at times we may be subject to implicit bias, and we might need to work a little harder and be more assertive than our straight colleagues to seize opportunities in the workplace. Law-firm diversity committees should examine whether their inclusion policies extend to sexual orientation and, if so, what support their firms provide to LGBT lawyers to overcome any potential implicit bias to which LGBT lawyers may be subjected.

The good news is that as more attorneys come out and more young LGBT attorneys enter the profession, attitudes—both express and implicit—will continue to shift, and implicit bias will become less of an issue. And, it is to hoped, in the not-too-distant future LGBT lawyers really will be as common as they seem on TV.

Keywords: litigation, LGBT, implicit bias, underrepresentation, employment discrimination, legal profession, stereotypes, television

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