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September 2019

Study confirms pervasive bias – and offers tools to address problem

Despite years of well-intentioned training on diversity, the legal profession is still not reflective of the pool of talented and qualified women and minorities, according to panelists on the showcase program “Interrupting Bias: The Key to Doing Diversity Right in the Workplace” presented on Aug. 10 during the American Bar Association Annual Meeting in San Francisco.

“It’s really hard to get lawyers to grapple with these issues because lawyers tend to think that they are so fair and how inherently we are able to discern right from wrong and that we get it that it’s wrong to be biased,” said panelist Kelly Dermody, managing partner of the San Francisco office of Lieff, Cabraser, Heimann & Bernstein, LLP.  But – “Lawyers are a terrible audience for this. And I think what’s even worse is that deep-rooted biases, racism, white supremacy exist in our profession.”

Evidence of pervasive bias

Dermondy’s comments followed a presentation by professor Joan Williams, director of the Center for Worklife Law at the University of California Hastings College of the Law on the findings from a recent report titled “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession” that was conducted jointly by the ABA Commission on Women in the Profession and the Minority Corporate Counsel Association and released last September.

Some results from the survey report:

  • Under what is called “Prove-It-Again”  bias, women of color, white women and men of color reported that they have to go “above and beyond” to get the same recognition and respect as their colleagues. Women of color reported PIA bias at a higher level than any other group, 35% higher than white men.
  • Under what is called “Tightrope bias,” women of all races reported pressure to behave in feminine ways, including backlash for masculine behaviors and higher loads of non-career-enhancing “office housework.” White women (21%) and women of color (18%) reported doing more administrative tasks (such as taking notes) at a higher level than white men.
  • Bias is pervasive throughout lawyers’ work lives. Women and people of color reported higher levels of bias than white men regarding equal opportunities to get hired, receive fair performance evaluations, get mentoring, receive high-quality assignments, access networking opportunities, get paid fairly and get promoted. “In essence,” Williams said, “gender and racial bias was reported in all seven basic workplace processes.”
  • Women of color reported the highest levels of bias of any group, and reported they had equal access to high-quality assignments at a level of 28% lower than white men, and they had fair opportunities for promotion at a level of 23% lower than white men.

White said that perhaps the most surprising result to her from the report has to do with white men. “What the methodology shows that is dramatic is that white men are kind of the outlier and that their experience in the workplace is quite unlike that of the other groups,” she said.

Taking action: The tools

The second part of Williams’ report offers two cutting-edge toolkits — one for law firms and one for in-house departments, on how to interrupt bias in hiring, assignments, performance evaluations, compensation and sponsorship. 

Williams says these toolkits are small steps that can lead to big changes.

The toolkits take a three-step approach:

  1. Use metrics: They can help you pinpoint where bias exists and assess the effectiveness of the measure you’ve taken.
  2. Implement bias interrupters: These are small adjustments to your existing business systems and should not require you to abandon your current systems.
  3. Repeat as needed: After implementing bias interrupters, return to your metrics. If they have not improved, ratchet up to stronger bias interrupters. Keep repeating until you get results.

The report explains in detail each of these categories and gives examples of each.

Also on the panel were moderator Michele Coleman Mayes, general counsel and secretary at the New York Public Library and former chair of the ABA women’s commission; and speakers Peter Blanck, of the Burton Blatt Institute at University of Syracuse School of Law; Carol Steinberg, a solo attorney in Newton, Mass., and a disability activist; and Joseph West, partner and chief diversity and inclusion officer at Duane Morris LLP in Washington, D.C.

The panelists lauded the work of the women’s commission and the report and said why they think it matters.

“It’s so important that there be more lawyers with disabilities, because we need that critical mass doing this and going to court in wheelchairs to make changes to accessibility to courts and to judges,” said Steinberg, a wheelchair user who talked about obstacles she encounters inside the courtroom such as not being able to readily participate in attorney-judge sidebars. “So, this research is showing how we can welcome people with disabilities into the profession.”

West said breaking down barriers to diversity by whatever means is critical.

“Diversity is about workforce inclusions throughout the workplace. So, by definition that means it’s a collective endeavor,” he explained. “It’s everyone’s responsibility. At the heart of the things that we find to be the most intractable barriers to growth, development and advancement is implicit bias, and interrupting those biases is critical.”

A free Executive Summary, outlines the study results. The full report, which includes Williams’ Bias Interrupter Toolkits, is available free to ABA members, and for purchase to nonmembers.

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