Issues regarding diversity, inclusion, and unconscious bias have been central to labor and employment law for years. These issues have become even more important as the legal landscape and public opinion continue to evolve.
Diversity is what you have; inclusion is what you do. Diversity is a measure of the individuals with different social identities and backgrounds in a given workforce. Inclusion, on the other hand, refers to the process of removing hidden barriers and promoting unity among the individuals comprising that workforce. As a result, a law firm’s hastily posting a diversity and inclusion mission statement on its website or sponsoring diversity and inclusion events is not enough to combat issues. Furthermore, simply hiring a director of diversity and inclusion as a quick-fix solution is insufficient unless diversity and inclusion efforts are owned not only by those at the top of the organization, but by individuals at all levels within the firm or company.
In the legal industry, eliminating unconscious bias to better promote diversity and practice inclusion is a tripartite goal of immense importance. As attorneys, we have an ethical obligation to provide advice that is unbiased, objective, and sound. We should also strive to provide advice that is creative and nuanced and be able to recommend a variety of solutions. To do so, however, we must have access to a wide range of opinions and viewpoints. This, in turn, requires continuous efforts to promote greater diversity and practice inclusion within our firms and organizations. Thus, it is incumbent upon all of us to be able to overcome our own unconscious biases.
Recognizing Unconscious Bias
The first step to remedying and eliminating unconscious biases is learning to recognize them. Indeed, you need to become conscious of a bias before you can work toward overcoming it. There are several common types of unconscious bias:
Illusion of objectivity – By nature, we all have some form of unconscious bias, but most of us consider ourselves to be objective and reasonable in thought and action. Therefore, when we assume our own objectivity and ignore evidence to the contrary, we demonstrate an unconscious bias in favor of our own thoughts, views, and actions.
Affinity bias – Affinity bias is the tendency to favor individuals whom you perceive as similar to you because of physical resemblance, shared interests or views, or comparable backgrounds and experiences. Affinity bias poses a particularly significant barrier to promoting an inclusive environment because well-intentioned people think they are having a positive impact by hiring, training, mentoring, or promoting people who are “like” them. Unfortunately, however, in-group preferences often are more harmful to diversity and inclusion efforts than out-group discrimination.
Anchoring bias – Anchoring bias is the tendency to form associations and make judgments based on the first piece of information received, even if it is contradicted by information that comes later. For example, you might develop expectations or draw conclusions about individuals based on the first thing you learn about them (i.e., skin color, gender, or gender identity) rather than their words, thoughts, actions, or behaviors.
Attribution bias – Attribution bias occurs when we attribute an individual’s or group’s actions to some inherent characteristic as opposed to underlying situational factors. This tendency may cause you to judge one person’s mistake more harshly than another’s or to recognize one person’s errors or successes while ignoring or excusing those of another.
Availability bias – Availability bias occurs when we overestimate the probability of events associated with a memorable, dramatic, or recent occurrence. An oft-cited example is the tendency to fear driving in a car after experiencing or witnessing a traumatic crash.
Confirmation bias – Confirmation bias is the tendency to overvalue information supporting an already-held belief or opinion while ignoring or undervaluing information to the contrary.
Tips for Driving Institutional Change in the Legal Sector
Federal and state laws prohibiting employment discrimination have existed for more than 50 years, but the underrepresentation of women and minorities in some workforces remains a significant problem. This underrepresentation is especially prominent in the legal profession, which has an unfortunate history of treating elitism as a virtue and exclusivity as a mark of prestige.
A recent study published by Law360 revealed that women comprise one-third of the attorney workforce despite graduating from law school in nearly equal numbers as their male counterparts for more than 30 years. Furthermore, women represent only 24 percent of all partners and just over 20 percent of all equity partners at law firms. The same study also identified firms — including Jackson Lewis — that have made the most progress toward correcting this imbalance.
Receiving recognition is great, but the value of promoting diversity and practicing inclusion extends far beyond that of receiving good press. Indeed, firms that do both will develop a workforce with a wider range of experiences, backgrounds, and opinions and, as a result, will be able to offer more creative, insightful, and nuanced advice to their clients, leading to even greater success. An essential step toward achieving this goal, however, is structuring your diversity and inclusion initiatives in ways that avoid the insidious influence of unconscious bias.
The following are a few important steps that the legal industry can take to do this.
Hold leaders accountable. Demand results when it comes to diversity and inclusion initiatives. Individuals occupying positions of authority should be evaluated based on their ability to advertise, recruit, hire, retain, and advance a diverse and inclusive workforce. At Jackson Lewis, our firm’s chairman, Vincent Cino, recently became a signatory to American Bar Association Resolution 113 on behalf of the firm. This resolution urges “all providers of legal services, including law firms and corporations, to expand and create opportunities at all levels of responsibility for diverse attorneys.” In keeping with this objective, our firm reserves a permanent seat on its board of trustees for a diverse board member and maintains a permanent diversity committee focused on establishing and achieving initiatives and concrete goals.
Expand your reach. Review your firm or company’s recruitment efforts with an eye to whether you are reaching a sufficiently diverse pool of candidates. Consider hiring recruiters who specialize in recruiting diverse candidates or designating an internal team to work with your hiring committee to hire more diverse employees.
In addition, determine whether your firm is doing enough to make employment practical and attractive to underrepresented populations. This may involve reconsidering your family-leave and caretaker policies, whether part-time partnership opportunities are available to employees with demanding family obligations or health restrictions. Establish policies that allow employees to work from home or remotely when necessary. Plan events and conferences that focus on needs particular to one or more underrepresented communities. For example, Jackson Lewis holds an annual Women in Employment Law conference that is always highly attended.
Encourage employees to self-identify. While the law requires that you allow your employees to self-identify with respect to certain categories such as race, disability, and gender, go beyond what is required by the law and encourage your employees to self-identify based on sexual orientation, gender identity, and gender expression. Jackson Lewis encourages new hires as well as current employees at all levels and in all positions to self-identify with respect to a wide range of categories. This approach forms a crucial part of our diversity and inclusion efforts because it actively encourages all employees to feel comfortable and supported in bringing their whole selves to work.
Mandate regular diversity and inclusion training. Diversity and inclusion continuing legal education training is now required for attorneys practicing in the state of New York, but all firms should take it upon themselves to train employees on the importance of practicing diversity and promoting inclusion. Firms should consider planning a mandatory diversity and inclusion training, which can be offered at lunchtime or other workable times. These efforts should focus on recognizing and eliminating unconscious bias and micro-inequities in normal intra-office interactions as well as during client interactions. This training must go beyond more traditional harassment prevention (which covers the federal and state anti-discrimination statutes) to cover ageism, disablism, anti-Semitism, homophobia, transphobia, gender nonbinary bias, colorism, Islamophobia, and other biases.
Developing expertise in this area will also make your attorneys more valuable and your firm more marketable. For example, Jackson Lewis has developed a team of industry-leading experts in this field and has seen benefits not only in the form of increased business, but also in the creation of a healthier, more productive work environment.
These issues are important to all industries, but especially to the legal profession. If we fail to recognize our own unconscious biases or those that may be influencing a client or third party, we may fail to consider the full range of issues affecting our clients. As a result, we may provide advice that leads to unexpected liabilities or missed opportunities. The best way to avoid these professional and legal consequences while also driving positive institutional change is to combat unconscious bias through the kinds of concrete, measurable steps identified above.
Michelle E. Phillips, JD, and John T. Cigno, JD, are attorneys in the White Plains, N.Y., office of Jackson Lewis P.C., a leading national employment law firm. This article ran in our July/August 2018 issue.