March 09, 2015 Articles

Know Thyself: Affinity Bias in the Legal Profession

By Stella Tsai and Debra Rosen

Humans are hardwired to be biased. It is human nature to seek the company of others who fall within our “comfort zone” and to flee from those who trigger our “danger detectors.” Our positive response to people who are similar to us is known as “affinity” bias.

As lawyers, we pride ourselves on objectivity. We find it hard to accept that our unconscious biases contribute to the attrition rates of minority and women lawyers in the workplace and that bias plays any role in our interactions with diverse attorneys. We are certainly too enlightened for that. But research has shown that everyone has biases; it is just a part of who we are.

The good news is that while our initial hardwired responses are quick and more likely to be error-prone, our brains have a secondary, detailed processing system that can help us correct mistakes. We can teach ourselves to recognize our unconscious biases and, in essence, override them. When leaders and decision makers take time to reflect and check themselves, research shows that decision making is less influenced by their unconscious minds. The following will explore the scientific foundations for implicit biases, the effect in the workplace if those biases remain unchecked, and best practices for mitigating bias and promoting inclusion in the legal profession.

Unconscious Thought: The Scientific Basis for Implicit Bias
What exactly is implicit bias? For the last century, this concept has intrigued those who study the mind. Starting with Sigmund Freud through the present day, much has been written on conscious and unconscious thought and how both shape our behavior and interactions with others.

Think of unconscious thought as the snap judgments we make every day. As discussed by John Bargh, “[t]he default unconscious perception generates expectations about behavior and personalities based on minimal information.” John A. Bargh, “How Unconscious Thought and Perception Affect Our Every Waking Moment,” 310 Sci. Am. 30 (2014). For most of the people we interact with on a daily basis such as coworkers, salespeople, and people we see on the street, we have certain unconscious expectations as to how they will act. As recognized by Bargh, “these expectations come to us immediately and without our thinking about them” and may be because of how the people look or what their job is.

“Implicit bias” is an aspect of this ever-evolving science of unconscious thought. How do we know a person is acting “unconsciously,” without control over his or her thought processes or impression formation? Researchers from several different fields have developed assessments that seek to measure implicit bias. These research efforts have provided reproducible results that show that unconscious thought processes, many times contrary to our declared beliefs, form our reaction to certain situations.

The research also shows that unconscious thought and implicit bias is not limited to nonminorities. New York Times columnist David Brooks reported that his review of the research showed the following:

Both blacks and whites subtly try to get a white partner when asked to team up to do an intellectually difficult task. In computer shooting simulations, both black and white participants were more likely to think black figures were armed. In emergency rooms, whites are pervasively given stronger pain killers than blacks or Hispanics. Clearly, we should spend more effort rigging situations to reduce universal, unconscious racism.

David Brooks, “Beware Stubby Glasses,” N.Y. Times, Jan. 11, 2013. While this notion of unconscious bias may seem preposterous or offend people who firmly believe they are completely objective, it is important for individuals, particularly lawyers, to keep an open mind and recognize that research consistently shows that complete objectivity is a myth. We need to be aware of the unconscious processes “percolating beneath the surface of our consciousness” so that we can counteract them. Theodore A. McKee, “Judges as Umpires,” 35 Hofstra L. Rev. 1709, 1719 (2007). This is not a question of guilt or innocence, but one of knowledge. Going with our “gut feelings” without further reflection has the potential to cause as much harm as overt prejudice.

Why is all of this important? Among other things, while many of our antidiscrimination policies focus on those who are victims of explicit and obvious prejudice, these policies are not set up to address discrimination that is more subtle and part of the unconscious reactions of both those who discriminate and those who are discriminated against.

The High Cost of Unchecked Implicit Bias
The failure to address unconscious bias can have serious consequences. Philippe Silberzahn, a professor of strategy and innovation, attributes the CIA’s intelligence failures, in part, to the CIA’s “relatively tight group of Caucasian, protestant, liberal-arts-educated American males” and overlooking people whom former Defense Secretary Robert Gates described as a “little different” or “eccentric.” Philippe Silberzahn & Milo Jones, “Lack of Diversity Paralyzed the CIA. It Can Cripple Your Organization, Too,” Forbes, Apr. 26, 2012. As the Cuban Missile Crisis reached a head in 1961, for example, CIA analysts took a “condescending and sometimes racist attitude toward Cuban informants,” dismissing intelligence they provided about the accumulation of missiles. Prior to the Iranian revolution, the racial and ethnic homogeneity at the CIA led to a “consistent lack of curiosity about the religious opposition to the shah.” Moreover, the CIA’s analytical unit on Iran did not have Persian specialists who could understand the dynamics on the ground. Without a diverse workforce, the CIA “had a hard time getting inside the heads of its opponents” and undercut its mission to avoid “strategic surprises.” Silberzahn & Jones, supra.

The legal profession is hardly immune from mistakes in judgment resulting from unconscious bias, as evidenced by a provocative study recently published by Dr. Arin Reeves of Nextions. Arin N. Reeves, “Written in Black and White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills,” (Nextions, Yellow Paper Series 2014). As part of this study, a memo was prepared that incorporated grammatical and analytical mistakes. This memo was disseminated to 60 partners who agreed to participate in a writing analysis project. Of these partners, 23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were white. This diverse group of lawyers received demographic and biographical information about the writer, “Thomas Meyer.” Fifty percent of the partners were informed that Mr. Meyer was a white third-year student at NYU, and the other 50 percent were told that Mr. Meyer was a black third-year student at NYU. Fifty-three out of the 60 partners returned the scored writing samples.

For the exact same memo, the black “Thomas Meyer” received an average rating of 3.2 out of 5 while the white “Thomas Meyer” scored an average rating of 4.1 out of 5. Qualitative comments on the memos also favored the white Thomas Meyer. The white Thomas Meyer had “potential,” “good analytical skills,” and was a “generally good writer but needs to work on X,” while the black Thomas Meyer “needs lots of work,” was “average at best,” and a scorer “could not believe he went to NYU.” These stark results would come as no surprise to minority lawyers who have had to overcome extraordinary hurdles to ascend through the ranks of law firms.

Reducing the incidence and impact of unconscious bias seems like an herculean task, but it can happen, as demonstrated in the world of Major League Baseball (MLB). In 2011, economics professors at Southern Methodist University published a study that analyzed the calls of MLB home plate umpires with respect to 3.5 million pitches from 2004 to 2008. Christopher A. Parsons et al., “Strike Three: Discrimination, Incentives, and Evaluation,” 101 Am. Econ. Rev. 1410 (2011). The data showed that umpires called disproportionately more strikes for pitchers in their same racial/ethnic group, producing an advantage for white pitchers. The professors also discovered that when MLB umpires work in ballparks where their calls are monitored by a computer system, the impact of their unconscious bias is diminished. Extra scrutiny and elevated self-awareness caused their strike zone to be more accurate and less influenced by the unconscious mind. Providing this extra scrutiny and elevated self-awareness are critical parts of programs designed to reduce the impact of implicit bias.

Best Practices for Reducing the Impact of Implicit Bias
Because as lawyers we place a premium on objectivity, it is often hard to admit to unconscious biases or preferences and the fallibility of our rationales for decisions. One useful self-assessment tool that measures unconscious bias is a free online survey known as the implicit association test (IAT) created and maintained by Project Implicit, which includes researchers from Harvard University, the University of Virginia, and the University of Washington. For those who seek enlightenment, the results of the IAT can be eye-opening.

For those who seek to reduce the impact of unconscious bias, bar leaders have identified several, very practical measures that lawyers can undertake:

  • Evaluate interviewing skills and techniques and educate and train attorneys on the organization’s diversity and inclusiveness commitment to effectively communicate with applicants during interviews.

  • Educate and train attorneys and staff involved in interviewing and hiring about the role of unconscious bias and to identify the factors that create successful attorneys in the firm. Create interview questions that identify those characteristics in the candidates. Make sure that at least one individual who is part of the interview team has the responsibility to discuss diversity and inclusiveness initiatives at the firm.
  • Lawyers and practice group leaders with authority to allocate work should strive to be more self-aware and leave their comfort zones.
  • Rather than require new associates or new hires to prove themselves, assume competence and allow them to succeed or fail based on the work product they produce for you—paying attention to the potential influence of unconscious bias on your assessment of the quality of the work product.
  • Analyze diverse attorney departures from the firm to determine why these attorneys have left, which may include conducting thorough exit interviews. If a pattern emerges, address these issues as part of the retention process.
  • Incorporate diversity and inclusiveness questions in the annual evaluation process for partners and associates.
  • Develop affinity/support groups that should be open to anyone interested in participating. All affinity groups should have a defined business purpose as well as foster supportive relationships and networking.
  • Personnel involved in human resources need to have training on unconscious bias, and the organization should consider having one person review all evaluations for patterns of unconscious bias.

Interestingly, just making people aware of their unconscious bias isn’t always enough motivation to get them to change their thinking or their actions. Sometimes awareness of bias makes it worse, as recognized by Adam Grant and Sheryl Sandberg in “When Talking about Bias Backfires,” N.Y. Times, Dec. 6, 2014. In one study cited, when managers were told that many people held stereotypes that women employees were significantly less career-oriented and more family-oriented, these managers were 28 percent less interested in hiring the female candidate, and 27 percent judged her as “less likable” even after specifically being told to “avoid thinking about others in such a manner.” While the answer is not to stop pointing out stereotypes, their advice is that we also “need to communicate that these biases are undesirable and unacceptable.”

We need to focus on our power to reduce the impact of unconscious bias in the workplace. A major step is to accept that unconscious bias exists, whether positive or negative, as complete objectivity is not possible. We also need to make clear that these biases have no place in a diverse and inclusive work environment. Once we begin to recognize the influence of unconscious biases, we can reduce their impact and make better decisions that will help us realize our mutual goal of professional success.

Keywords: litigation, woman advocate, grit, implicit bias, affinity bias, unconscious bias, diversity, best practices, training

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