United States: Reducing Impact Of Affinity Bias In The Legal Profession

Bias is built into our hardwiring. We process millions of pieces of information each day and make automatic decisions using what psychologist Joseph LeDoux in 1996 described as an unconscious "danger detector." The detection of danger or something different activates a "fight or flight" response. It is human nature to seek the company of others who fall within our comfort zone and make us feel safe. This positive response to people who are similar to us is known as affinity bias.

Left unchecked or analyzed, this bias or preference for people who have similar backgrounds and interest can have a negative impact on the workplace. In our "post-racial" society, it may be hard to accept that bias is the root cause of the attrition rates and that bias plays any role in our interactions with diverse attorneys. But research shows that everyone has bias; it is just a part of who we are.

Since 2006, the American Bar Association, the Minority Corporate Counsel Association, the Hispanic National Bar Association, the National Association of Women Lawyers and other legal bar associations have conducted surveys and studies on diversity in the profession and each points to hidden barriers in organizations caused by bias as the root cause for the attrition rates of women and minority lawyers. When those who have the power allocate resources or invitations to people who are more like them, they are effectively discriminating against those who are different from them, according to a Harvard Business Review article, "How (Un)ethical Are You?" A lack of awareness of affinity bias helps perpetuate the status quo.

The good news is while our initial hardwired responses are quick and more likely to be errorprone, we have a secondary, detailed processing system that can help us correct mistakes. It just takes time.

In fact, diversity and inclusion can be sustainable when leaders and decision-makers make the time and effort to understand:

  • The meaning of "affinity bias."
  • The power affinity bias may have on an individual's career diversity.
  • The influence of affinity bias on attrition of diverse attorneys.
  • How self-awareness can mitigate the impact of such bias in the workplace.

Reducing the impact of affinity bias will require us to acquaint people with their unconscious preferences in a nonthreatening way. One effective tool (and deemed most effective) is a free and widely available tool to test one's own unconscious bias, known as the implicit association test (IAT). This series of tests was created and maintained by Project Implicit, which includes researchers from Harvard University, the University of Virginia and the University of Washington.

For those who don't like taking tests, consider the power of affinity bias in a study of Major League Baseball, which was documented in a 2011 study by an economics professor at Southern Methodist University. He analyzed the calls of MLB home plate umpires with respect to 3.5 million pitches from 2004 to 2008 and discovered that the umpires call disproportionately more strikes for pitchers in their same racial/ethnic group. Because most MLB umpires are white, this caused a disparate advantage for white pitchers. When MLB umpires work in ballparks where their calls are monitored by a computer system, however, their unconscious bias is diminished. (See "Strike Three: Discrimination, Incentives, and Evaluation," by Christopher A. Parsons, Johan Sulaeman, Michael C. Yates and Daniel S. Hamermesh, published in The American Economic Review.) The extra scrutiny elevated awareness and caused their decision-making to be less influenced by their unconscious mind.

We need to recognize that success in any legal organization depends on many factors apart from technical skill and ability. As diversity and inclusion expert Kathleen Nalty has observed, relationships have a profound effect on the opportunities the attorney receives. Diverse attorneys can be viewed, often unconsciously and unintentionally, as outsiders due to their difference— which makes it difficult for them to be informally included in work assignments, social events, coffee breaks, casual conversations and other situations that are essential to success. The research compiled by the bar associations shows that diverse attorneys report having limited access to formal and informal networking opportunities; internal information networks, i.e., the proverbial grapevine; meaningful work assignments; training; mentoring and sponsors; and substantive contacts with clients. Also, they will receive inadequate feedback and "soft" evaluations (doing "fine" as opposed to meaningful review and suggestions for actions that will lead to advancement) and report that others feel uncomfortable around them.

What are some other best practices recommended by the ABA, MCCA, HNBA and NAWL, Nalty, and other bar leaders for mitigating bias and promoting inclusion in the workplace?

  • Examine hiring criteria in order to determine whether GPA and other objective criteria are the best predictors of success or if other factors should be equally important in selecting law students for interviews. The hiring criteria should match the competencies that are needed for the position and should also drive training, development, evaluations and promotions within the law firm.
  • Evaluate interviewing skills and techniques and educate/train attorneys on the organization's diversity and inclusiveness commitment in order to effectively communicate with applicants during the interviews. It is also important to educate and train attorneys and staff involved in interviewing and hiring about the role of unconscious bias and to identify the factors that create successful attorneys in the firm and create interview questions that identify those characteristics in the candidates. Make sure that at least one individual who is part of the interview team has the responsibility to discuss diversity and inclusiveness initiatives at the firm.
  • Work to increase pipeline efforts of diverse students into the profession, including participating in college and law school mentoring programs for diverse students and explore adding diverse 1L students into the summer program.
  • Lawyers with authority to allocate work should strive to be more self-aware and step outside of their comfort zones.
  • Rather than require a new associate or hire to prove themselves, assume competence and allow them to succeed or fail based on the work product they produce for you.
  • Analyze diverse attorney departures from the firm to determine why these attorneys have left, which may include conducting thorough exit interviews. If a pattern emerges, address these issues as part of the retention process.
  • Incorporate diversity and inclusiveness questions in the annual evaluation process.
  • Develop affinity/support groups that should be open to anyone interested in participating. All affinity groups should have a defined business purpose as well as foster supportive relationships and networking.
  • Personnel involved in evaluations need to have training on unconscious bias and the organization should consider having one person review all evaluations for patterns of unconscious bias.

We are mindful that there remains much to be done to improve our collective track record for recruiting and retaining diverse professionals. By moving toward a model of inclusion and awareness, we will not only improve our respective numbers, but we will quite likely improve the attitudes and relationships among members of the workforce as a whole. Inclusiveness in the legal workplace requires people to set aside, or at least acknowledge, their respective impressions and biases, positive or negative. If we begin to regard one another as individuals and feel valued and respected ourselves, we will be more likely to perform at our highest levels and work hard toward our mutual goal of professional success.

Originally published in The Legal Intelligencer - 10 March 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions