Few people will openly admit to holding racist beliefs or unconscious biases that can affect our daily decision-making from hiring decisions to medical care to our interaction with law enforcement and even the judicial system. But the fact is we all have biases.
“The first step is awareness,” says German Gomez, assistant general counsel of Hogan Lovells U.S. LLP. “I think all of us in the legal profession need to remind ourselves that there’s potentially something lurking in our brains that could cause us to make decisions that aren’t thought through or subjective.”
Gomez was speaking during the recent webinar “Implicit Bias in the Legal Workplace: Moving from ‘Who Is Biased?’ to ‘What Can We Do About It?” He and other panelists offer examples of implicit bias, tips on recognizing your own bias and advice on how to challenge your implicit bias in the workplace and in your personal life. The webinar was moderated by Jonathan Smaby, executive director of the Texas Center for Legal Ethics.
Recognize that bias is all around you. “Unconscious bias does not exist in a vacuum,” Gomez says. Unconscious or implicit bias is developed through our socialization process, which can include a person’s upbringing, peers and/or religion. The media also plays a big role in contributing to implicit bias. Karen Hester, CEO of the Center for Legal Inclusiveness, cites news coverage of Hurricane Katrina as an example. An image of white people with food in the middle of the flooding bore a caption that referred to them as “finding” food from a grocery store, while a similar picture of a black man featured a caption that claimed he “looted” the food.
Janie Schulman, a partner at Morrison & Foerster LLP in Los Angeles, suggests popular culture also influences implicit bias. She cites the movie, “Hidden Figures,” as an example in which the white male NASA scientists assume Katherine Johnson is a secretary because she is black, but she is actually a physicist.
Know that bias comes in many forms. “We need to keep in mind that these biases may be negative or positive,” says Schulman. Biases come in many forms, including stereotypes, prejudices and discrimination. “There are many characteristics that trigger bias,” shares Gomez, citing a recent study of Fortune 500 CEOs that reveals 57 percent are over 6-feet-2-inches tall. These results suggest a bias that height is associated with leadership ability. Class, sexuality, gender identity, national origin, marital status and physical attractiveness are additional factors that may lead to different types of biases. “Bias is not necessarily a good thing or a bad thing, but using that information moving forward is what has an implication on what you do,” says Hester.
Become aware of bias in your (legal) environment. The Thomas Meyer study, a legal writing analysis, demonstrates implicit racial bias in the legal profession. Conducted in 2014, the study included 60 partners from 22 firms of various sizes. The diverse group of partners were tasked with reviewing a memo written by a third-year associate by the name of Thomas Meyer: half of the partners were told Thomas Meyer was a white man and half were told he was black. The white Thomas Meyer received a 4.1/5 score on his memo, while the black Thomas Meyer received a 3.2/5. The memos had the same amount of spelling errors, yet the group analyzing the black Meyers paper found more spelling errors than the group with the white Meyers paper.
“When I look at this study as a partner in a law firm … the results of it are very concerning because I think it’s no big secret that in law firms, hiring minorities isn’t so much the issue as retaining minorities and women is. I think this can be telling as one of the things we as partners in law firms need to think about,” says Schulman.
Performance evaluations are another source of bias in the workplace. In a study done by Fortune magazine, a linguist analyzed the language of 248 reviews from a group of 180 men and women who worked for large tech companies, midsize companies and small environments. The study found that 58.9 percent of male reviews contained critical feedback versus 87.9 percent of female reviews. Males were found more likely to receive constructive feedback over negative feedback when compared to females, and the word “abrasive” appeared 17 times in female reviews while failing to appear in male reviews. “There seems to be a double standard in how we compare the performance of men and women,” says Gomez.
Take measures to challenge and/or eliminate your biases. There are a variety of ways to address bias in the workplace and in your personal life. For a fair hiring process, “there are apps that have been developed to help with intake by removing information that can identify race or ethnicity,” Hester says. Sending an email to the supervisor of a minority lawyer that impresses you or promoting that lawyer to your colleagues are two easy ways to fight bias in your office. Just spending more time with employees who are different from you can expose you to different perspectives.
If you’re looking to take a more active role in fighting workplace bias, Schulman suggests creating dispute resolution programs or affinity groups. “Our firm has an affinity program for parents, for LGBTQ people, for whatever people are interested in,” she says. Starting a mentoring program is a great way to integrate different staffs and make employees feel heard, because Schulman confesses that “we’d like to see organic mentoring take place, but that doesn’t often happen.”
Eliminating implicit bias is only possible if people are able to recognize and understand their own biases. Implicit association tests, which can be found online, can help people understand if they have certain biases outside of their own awareness. Once you realize your own biases, you can actively challenge them.
“Implicit Bias in the Legal Workplace: Moving from ‘Who is Biased?’ to ‘What Can We Do About it?’" is sponsored by the ABA Center for Professional Development, Center For Professional Responsibility, Coalition on Racial and Ethnic Justice, Commission On Disability Rights, Commission on Lawyer Assistance Programs, Commission on Sexual Orientation & Gender Identity, Commission On Women In the Profession, Council for Racial and Ethnic Diversity in the Educational Pipeline and the Commission on Hispanic Legal Rights and Responsibilities.