Why is creating a firm that is diverse and inclusive so hard?
There is a compelling “business case” for diversity. Abundant evidence shows that diversity drives productivity and results. Diverse groups make better decisions. The legal marketplace from which firms seek business is diverse, as is the talent pool from which they hire. Diversity is most powerful when “engagement” of workers is present. One element of engagement is a sense of “inclusion.” Without inclusion, diversity efforts are likely to fail.
So if diversity and inclusion (D&I) are so good for business, why do law firms (and many other organizations) still struggle with their diversity efforts? The suspects are numerous, including structural ones like the challenge of incorporating family friendly policies in a law practice. We suggest that the true culprit—the root cause—is implicit bias. As ABA President Hilarie Bass wrote in a recent piece on implicit gender bias:
“The perception in the legal field is that getting ahead relies purely on objective merit, but at times the playing field is not level for women and other minorities. Inherent bias can unconsciously infiltrate into decisions about hiring, compensation and elevation.”
To reap the benefits of “D&I,” firms must identify and defeat the culprit—inherent or implicit bias. What is bias? Are we bad if we have it? It seems that we all have some form of implicit bias. Neuroscience explains bias, prejudice, and stereotyping. While the science may take us off the hook for having our biases, we are still on the hook for reducing its drag on our well-intended diversity efforts.
Implicit bias can be contrasted with explicit bias. The terms “implicit” and “unconscious” bias are often used interchangeably (and we do so here). Here we focus on implicit bias that is unconscious, not simply withheld from expression.
The first step to defeating implicit bias is to make our biases conscious. We know that our life experiences shape our views on race, gender, and age. Those views can remain deeply embedded in our unconscious minds and may be very different from the conscious values that we espouse. Experts tell us that once we are conscious of those deeply embedded biases, we can monitor our thinking and adjust our actions.
Where does unconscious bias show up in law firms? Let’s look at three key areas—recruitment, retention, and business development.
Unconscious bias can affect and infect hiring decisions. It shows up in “name discrimination,” which is triggered when the name on a resume indicates racial or ethnic background. Numerous studies show more positive responses to a resume bearing a male name than to an identical resume with a female name.
Bias also seeps in if an interviewer is unconsciously more comfortable with white males than black or white females; they may more readily get to know and appreciate white male applicants than women or people of color. Similarly, if an interviewer is influenced by unconscious images of leadership, the demographics of those hired most likely will reflect those images. In a firm with few women or lawyers of color, a black or female applicant may not fit the image most common within the firm and may (unconsciously) be screened out or may suffer an uncomfortable interview.
Some ways to banish unconscious bias from hiring efforts are:
- Expanding the diversity of your talent pool by networking and using recruiters with a good track record of finding diverse talent.
- Ensuring all lawyers and staff influencing hiring decisions go through effective bias training. (Good training reveals our unconscious views or biases and gives us practice in overriding them with more balanced and “enlightened” thoughts.)
- Considering blind hiring or systems that mask personal data (e.g., redacting names that indicate race or gender) at early stages of the hiring process.
Retention can be affected by the same forms of bias that influence hiring decisions (the issues of “comfort” and “unconscious images”). These forms of bias can affect how work assignments are made and can influence performance evaluations and decisions about promotion—all of which can increase or decrease retention.
Associates, like any employees, are more likely to do their best work and develop loyalty in a workplace where they are engaged. To engage and retain diverse lawyers, firms must create and maintain a culture of inclusion—in which all employees feel included and valued and can see a path to success. That means busting that culprit, implicit bias.
Law firm leaders may be unaware that some diverse lawyers do not feel included. Being different can take energy in the form of paying attention to behavioral norms to better fit in—or at least not “stick out.” That is energy that would be better applied (for the associate and for the firm) to doing great work. Lawyers being unaware that they are excluding women or other diverse attorneys demonstrates bias that is unintentional and unconscious.
Here are some examples of unconscious bias that excludes or creates obstacles for women or other groups:
- Presumed or Earned Credibility. Credibility is more often presumed in white males, while women or people of color frequently feel they must prove or earn it. For example, in meetings, often women or people or color (or even white males who don’t quite “fit in”) experience being “talked over.” They make a point and get little or no response. A few minutes later the same point is made by a white male, and he is given approval and credit. Consider how the person who is “talked over” or whose idea is credited to another feels. Likely, not valued, heard, nor visible; confidence or a sense of “belonging” may be undermined.
- The “Double Bind.” Women may not be seen as effective (or as “partnership material”) if they behave in ways that are “feminine” (e.g., they do not “take charge” of a meeting or they show emotion). But if they operate in a masculine way (they give directions, appear confident, or are competitive, decisive or confrontational), they are judged negatively—differently than a man demonstrating the same behaviors. The “double bind” requires women to get it just right. It puts them in a tough dilemma as they must confront the fact that power and likeability are negatively correlated for women. (Next time you make a judgment about a woman’s behavior, ask yourself: “Would I judge this behavior the same way in a man?”)
Strategies for creating an inclusive culture include:
- Providing training on unconscious bias to all lawyers so bias does not inadvertently affect how they make assignments or review associates.
- Assuring that performance review systems are objective and applied equally to all associates.
- Ensuring that women and people of color receive candid, helpful, and equal feedback. (Research shows that women don’t receive the same amount of feedback as men, probably out of awkwardness or the fear “she’ll be hurt.” Without objective feedback, women are at a disadvantage.)
- Creating systems that assure that choice work is distributed with inclusion in mind.
- Creating mentoring programs where partners mentor lawyers who do not look like them.
- Choosing firm social activities that are of interest to most everyone.
- Including women and attorneys of color in client meetings, work teams, and pitches (see below).
Implicit bias can undermine the success of business development efforts. Many large companies require or at least request that their outside counsel be diverse. This means that law firms that lack diverse lawyers, or exclude their diverse lawyers on client teams, risk loss of business from those prospective clients.
Having attended many conferences for women and other diverse lawyers, we have anecdotal evidence that decision-makers discuss the importance of their outside counsel being diverse. Some find it off-putting that pitch teams of only older white men come to visit and talk about diversity in their firm. Or that a woman joins the pitch team, and is not part of the working team. The pitch team may not even recognize their lack of diversity or think it doesn’t matter to the client (again demonstrating unconscious bias).
Involving diverse lawyers in successful business development activities can benefit more than the firm. It can also increase engagement of those diverse attorneys and, so, increase the odds of retaining them.
To enhance business development with diversity in mind, we suggest:
- Paying attention to the value a client or prospective client places on engaging diverse lawyers and to the gender or other diverse characteristics of the decision makers in that organization.
- Making sure your pitch teams and the related work teams are diverse.
- Training all lawyers to be sensitive to racial, gender, and cultural differences in their business development activities, i.e., assuring they understand and appreciate differences in prospective (and existing) clients.
- Training diverse lawyers to excel at business development. (Help them become comfortable with approaches that work for them. Do not insist that all lawyers use the same approaches. Rather, appreciate different styles and approaches.)
Unconscious bias can affect hiring, retention, and business development. It is the culprit that undermines the effectiveness of all of these critical areas of law firm success. This culprit can keep firms from meeting and sustaining diversity goals—and enjoying the demonstrated value of diversity and inclusion. Bringing bias to consciousness is the first step in defeating unconscious bias.
About the Authors
Caroline Turner is the principal of DifferenceWORKS LLC and is the former general counsel of Coors Brewing Company. She is the author of Difference Works: Improving Retention, Productivity and Profitability through Inclusion. Reach her at 303.320.1443 or email@example.com, or on Twitter @DifferenceWORKS.
Stewart Hirsch, a former firm and in-house lawyer, is managing director of Strategic Relationships LLC, a business development and executive coaching firm. Reach him at 781.784.5280 or firstname.lastname@example.org, or on Twitter @stewartmhirsch.