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.

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