With the summer associate recruiting season winding down and a new year beginning, now would be an ideal time to supplement the hard work that (hopefully) produced improved diversity recruiting results, by focusing on the professional development of the diverse and women attorneys who are already practicing law at your firm.
Among the number of factors affecting the success and professional development of diverse and women attorneys at law firms, none are more impactful than unconscious bias, micro-inequities and social isolation. While these issues are related, they are also very separate and distinct. As noted below, unconscious bias can lead to micro-inequities, which can lead to social isolation. If ignored and not adequately addressed, these issues will most certainly stunt the professional development of, and lead to a decreased retention rate among, a firm’s diverse and women attorneys.
To better understand how law firm partners and leaders can help address these issues and make meaningful contributions to diversity and inclusion efforts, let’s start with a discussion of unconscious bias.
Unconscious bias is a concept that has recently received a good deal of attention in the legal industry. However, it is not new to many other industries. In its most basic form, unconscious bias is the process by which an individual attributes certain qualities to, or makes assumptions about, all members of a particular group based on such individual’s experiences, beliefs and learned associations. Typically, unconscious biases exist with respect to gender and race, but they are also present with respect to other physical characteristics, including height, weight and hair color.
The common theme of all unconscious biases is that the person who holds such biases are unaware that they (i) harbor such beliefs, (ii) are making assumptions about groups of individuals or (iii) are making important decisions (employment or otherwise) based on such assumptions. This is in contrast to overt discrimination/stereotypes, where a person consciously makes decisions or takes action based on assumptions that such person is fully aware of.
In the workplace, unconscious bias is a subconscious preference to work with and engage others who share similar physical, intellectual and/or socio-economic characteristics. As a result of the oblivious nature of unconscious bias, it is a challenge to address, particularly among law firm partners who are reluctant to believe that they harbor any biases (unconscious or otherwise). The reality is that, regardless of age, gender, sexual orientation or race, we all harbor such biases. It is part of the human condition, as we are all influenced by our own experiences, convictions, beliefs and other ideas and perspectives that help to create unconscious bias.
There are a number of circumstances in the law firm environment where unconscious bias can adversely affect diverse and women attorneys. For example, failing to consider a diverse attorney during succession planning discussions despite the diverse attorney’s strong and long-standing relationship with the client. Another example would be failing to consider a female attorney with young children for an assignment because the matter would involve a significant amount of out-of-town travel.
The first step in combating unconscious bias is understanding the degree to which you have biases and how they may be affecting your decision making in the workplace. To assess your own personal biases, visit the Project Implicit website (https://implicit.harvard.edu/implicit/research/) and take the Implicit Association Test (IAT). Most individuals who take this test are surprised at the degree to which they harbor certain biases. Even I, as a seasoned diversity professional, was surprised at my results.
After taking the test, encourage other partners in the firm to take the test and recommend that the firm engage outside consultants who are experts in the unconscious bias arena and schedule a training session for all of the partners in your firm or practice group.
Taking the IAT and participating in unconscious bias training are important steps for individual partners to take if they seek to work more productively with attorneys who are different from themselves.
In addition to taking the IAT and participating in training sessions, set forth below are actions that partners should encourage their firms to take in order to combat unconscious bias:
• Conduct surveys (internally with current associates and externally, with former associates) to identify the degree to which unconscious bias has affected attorneys and the firm’s workplace environment;
• Establish a formal and confidential complaint reporting committee that is comprised of (i) partners who are approachable and supportive of the firm’s diversity and inclusion initiatives and (ii) senior level diversity and inclusion professionals at the firm. If your firm does not have a full-time diversity professional on staff, perhaps that should be your first order of business. A critical role of this committee will be to hear and address complaints about how unconscious bias and micro-inequities are affecting attorneys at the firm;
• Work with your firm’s marketing team or department to establish a process which ensures that, whenever possible and appropriate, women and diverse attorneys are included in new business pitches and other business development efforts.
Unconscious bias has a number of implications on the work place environment. One of the more significant consequences is the occurrence of micro-inequities.
The term micro-inequities is used to describe subtle and often subconscious messages in the workplace that devalue, discourage, and ultimately impair the performance of the recipient of such messages. While micro-inequities are often the result of unconscious bias, they can also result from overt and intentional discrimination. Micro-inequities can take the form of actions, gestures, words or tone of voice. Examples in the law firm environment include:
• Mistaking the identity of an individual of a certain ethnicity with another individual of the same ethnicity;
• Checking emails, texting or otherwise being distracted and not making a eye contact during a one-on-one discussion with a diverse or female attorney;
• Acknowledging the achievements of some team members, but not others (particularly the accomplishments of diverse or women attorneys), even though the accomplishments are relatively equal;
• Consistently (unintentionally or not) mispronouncing an individual’s name;
• Consistently not responding to messages from a diverse or female attorney without justification;
• Giving credit to a straight white male for an idea that was first proposed by a diverse or female attorney; and
• Extending invitations that are insensitive or unwelcoming to members of under-represented groups (i.e., invitations that assume only women will have child-care issues that may impact their ability to attend; invitations that encourage guests to bring their wives, instead of partners or significant others; or firm invitations that ignore other holidays celebrated during the “Christmas” season).
For partners looking to combat micro-inequities, the first step is to understand what micro-inequities are and how they are manifested. Again, training by a certified diversity consultant on this issue can be a very valuable exercise. In addition to training, there are concrete steps that can be taken to help eliminate micro-inequities from the workplace environment. Mary Rowe, the MIT professor who coined the term micro-inequities in 1973, recommends employing “micro-affirmations” to combat micro-inequities. Micro-affirmations are acts that convey a message of respect, inclusion and a sincere interest in promoting and supporting the success of others. Rowe describes them as “tiny acts of opening doors to opportunity, gestures of inclusion … graceful acts of listening and other acts which are often ephemeral and hard to see, events that are public and private, often unconscious but very effective, which occur wherever people wish to help others to succeed” (Micro-Affirmations & Micro-Inequities, Mary Rowe, MIT, 2008).
Examples of micro-affirmations in the law firm environment include:
• Avoiding the micro-inequities listed above in daily interactions with diverse and women attorneys;
• Reaching out to diverse and women attorneys within 30 days of their arrival at the firm to offer advice and guidance on how to succeed at the firm;
• Expressing gratitude for contributions made by diverse and women attorneys who worked on a recent matter;
• Providing immediate feedback on an attorneys performance during a recently completed matter (if the feedback is not all positive, be sure to express your continued belief in the attorney’s ability and map out a definitive plan on how to remedy any performance issues); and
• Encouraging attorneys to share their opinions and analysis, especially in those instances where they appear to be reluctant to do so and you are relatively certain that they have something of value to contribute.
One of the more pernicious effects of unconscious bias and micro-inequities on diverse and women attorneys is social isolation. Recent studies and surveys have found that the most critical factor affecting attrition/retention among diverse and women associates, particularly at large law firms, is social isolation (2012, Research Group on Diversity in the Legal Profession of the American Bar Association). Social isolation occurs when attorneys do not feel any meaningful connection to their firm’s community, other than as an employee. Factors that contribute to social isolation, in addition to micro-inequities, include, not being mentored, not being invited to informal lunches, dinners, other social events or client meetings.
This lack of social interaction and connection with the firm creates an unwelcome and often perceived, hostile work environment for those who are not invited to participate and feel isolated. There a number of ways to eliminate social isolation, but as with unconscious bias, formal training by a certified diversity and inclusion expert, would be an important first step in providing firm partners with the tools and information they need to mentor and develop associates across different races, cultures and genders.
In addition to participating in diversity and sensitivity training programs, there are concrete steps that every partner can take to limit the occurrence of social isolation in the law firm environment. These steps include:
• Encouraging diverse and women attorneys to take active roles in specialty bar associations;
• Recommending diverse and women attorneys to serve (i) on a not-for-profit boards, (ii) as a CLE presenter or (iii) as a leader in firm management;
• Encouraging all attorneys to attend networking functions geared toward diverse and women attorneys;
• Developing mentoring relationships with attorneys of a different gender, race, ethnicity, or sexual orientation;
• Inviting diverse and women attorneys to a non-work-related event and introduce them to others in your professional network;
• Publicizing the accomplishments and achievements of diverse and women attorneys, both externally and internally; and
• Inviting diverse and women attorneys to participate in business development efforts.
As an increasing number of corporate law departments require more diversity among the law firm attorneys staffed on their matters, the success of diversity and inclusion efforts in the law firm environment will be measured not only by the number of diverse and women attorneys at a firm, but also by the quality of experience and professional development of such attorneys. To that end, it is important to understand the concepts of unconscious bias, micro-inequities and social isolation because they are more than theoretical for those who experience their impact on a daily basis. They have a profound effect on professional confidence, performance and career trajectory. As a result, a critical component of any diversity and inclusion program must include a sustained focus on integrating, engaging and mentoring more diverse and women attorneys. That focus should begin now as the new year begins and individual goals are being set for 2014. Firm leaders, including partners from the most senior ranks to the newly minted, must all contribute to this effort if meaningful cultural change is to be achieved.
How will you support and help diverse and/or women attorneys at your firm reach their career goals in 2014?
Jeremiah A. DeBerry is U.S. Director of Diversity & Inclusion at Mayer Brown in New York.