An Inconvenient Truth About Bias

An Inconvenient Truth About Bias

In Moving Diversity Forward: How to Go from Well-Meaning to Well-Doing, Vernā Myers provides a how-to guide for those seeking to champion diversity in their one-on-one dealings and their law firms. Myers uses race, specifically focusing on the experience of blacks in predominately white institutions, as a vehicle to explore the challenges facing marginalized groups in the workplace. While the use of black-white dichotomy may make for uncomfortable conversation and does not encompass all of the challenges of diverse groups, it is a helpful tool.

Myers is refreshingly frank when talking about diversity. She brings the conversations that take place in safe spaces, such as BLSA offices, to the forefront. In particular, her discussion about bias is compelling and revealing. My initial reaction of “You can’t say that!” gave way to the growing realization that diversity won’t move forward until we are willing to engage in honest, and at times difficult conversations about what is happening and what isn’t. 

Own Your Bias

So, let’s talk about bias. The inconvenient truth is that bias is not solely reserved for bigots. We all have biases, i.e.,implicit preferences for or against a particular group or characteristic, which are steeped in stereotypes and prejudice. 

Don’t believe me? You can test yourself for hidden bias thanks to the efforts of, incredible psychologists from Harvard, UVA, and University of Washington.  They have developed a tool (Implicit Association Test or IAT) to measure our unconscious  biases. IAT leverages the power of association, specifically how quickly you associate a characteristic such as race with a positive word. In addition to race-based biases, you can test yourself for bias regarding age, disability, gender, religion, or sexual orientation.

It is both liberating and overwhelming to realize that everyone, even members of diverse groups, have biases:  liberating because, since everyone has a bias, the stigma is reduced; overwhelming because it begs the question – how do you address such a widespread issue? According to Myers, owning your bias is the first step.  Recounting her interview with noted organizational behavior scholar Dr. David Thomas, Myers notes:

[H]e responded, “The first thing is to acknowledge that without monitoring and focus, people of color will often be overlooked or undervalued with regard to their talent. If they don’t accept that as a fact, they will actually not be able to move the needle because they won’t intervene.” 1

Our willingness to examine our own biases is necessary in order understand and counteract societal stereotypes. Until we identify the obstacles to diversity in the legal profession, especially those within our complete capacity to change, we cannot hope to remove them. So, before reading on, I encourage you to embrace your humanity, take an IAT, and identify your biases.

Bias at the Law Firm

While discussions about bias can be abstract, I find it helpful to identify concrete ways that bias affects diverse attorneys in law firms.  To this end, Myers does not disappoint and, again using race as a proxy for marginalized groups, identifies five common bias themes that impact black attorneys. These biases are unfortunately promoted by attorneys of all races, including black attorneys. A recap of Myers’ five bias themes is below.

Bias Take 1 – Convex and Concave Lenses

Convex lenses make items appear larger, while concave lenses make them look smaller. Mistakes and accomplishments of black attorneys are subject to convex and concave lenses, respectively. One typo means black attorneys cannot write, and a skillfully crafted brief is dismissed as an anomaly. By contrast, other attorneys are given the benefit of the doubt and similar mistakes are considered one-off, inconsequential errors.

Unfortunately, diversity is considered another moniker for the oft-vilified affirmative action. The bias at work here is based on the stereotype that black attorneys are not as talented as their peers. Instead, black attorneys are presumed to have been hired through some sort of diversity draft where law firms trade competence for color.

Bias Take 2 – Political Correctness (PC) Extremism

PC Extremism also stems from stereotypes about the intellectual capacity of black attorneys. It happens when black attorneys do not receive necessary constructive feedback, even when underperforming.  On the flip side, it also exists when black attorneys are given “light-lift” assignments even when no performance issue exists. These situations may stem from a well-intentioned desire to set black attorneys up for success by reserving judgment or paving the way with an easy win. However, in both instances black attorneys lose out on key growth opportunities and necessary feedback, and thus do not develop alongside their peers. Unfortunately, the failure to keep pace is not revealed until it is too late to correct, and black attorneys are exiting the firm. 

Bias Take 3 – Representatives of Black America

This bias occurs when the failure of one black attorney is extrapolated to all black attorneys. Law firms are hesitant to attend diversity-recruiting fairs because their last diversity hire did not work out. But the same firms do not, for instance, think about refusing to recruit white attorneys because their last white candidate was a bust. 

The same bias is at work when blacks watch the news crime report and say, “Please do not let this be a black person.” The pressure to be perfect and avoid having miscues attributed to your entire race can be overwhelming, and ironically result in more mistakes.

Bias Take 4 – The Great Black Hope Phenomenon

The Great Black Hope Phenomenon is the use of the exemplary black attorney as the metric by which all black attorneys are judged. What’s wrong with wanting a superstar? Nothing. But Myers notes the price to be paid of sifting for gold.

What the managing partner could not see was that there were white partners in his firm who had been able to progress by being capable and good, but who were not necessary superstars. … Why is the standard higher for black people? As long as he keeps looking for the superstar black partner X, it will take him a long time to make a difference in the complexion of his partnership. That is the nature of superstars. There are only a few of them. 2

This bias is also due to the affirmative action stereotype. Some incorrectly believe that, in law firm recruiting, being black is  somehow the equivalent of graduating magna cum laude from Harvard Law. 3 While I was not around for prior recruiting cycles, post-financial collapse this is not the case. If so, law firms would not have such meager representation in their summer classes. 

In response to this stereotype, law firms look for black candidates whose qualifications are so stellar, and oftentimes higher than many of their white counterparts, that their status as a qualified is beyond reproach. Take a look at the educational background of junior black associates at elite law firms. 4 Virtually all attended top law schools (e.g., Top 10 or Top 14 law school), and many received competitive 1L grades 5 and attended elite undergraduate institutions as well.

Bias Take 5 – Just Like Me Syndrome

The legal profession, particularly at its upper echelons, remains predominately white and male. The Just Like Me Syndrome works to keep it this way because, as noted in a recent survey, “hiring is more than a process of skills sorting; it is also a process of cultural matching between candidates, evaluators, and firms.” 6 This is not bias against black attorneys, instead it is bias for those with shared experiences.

These similarities serve as “badges of group membership and basis of inclusion or exclusion from desirable social opportunities.” 7 Thus, the black attorneys who are interviewed and get offers are those few whose leisure activities, experiences, self-presentation and other lifestyle markers are similar to those of the hiring committee. As a result, as with the Great Black Hope Phenomenon, black attorneys at a law firm are more likely to have attended elite institutions.

Myers points out that these biases are not one-sided and that black attorneys may, at times, behave in ways that reinforce these biases. For instance, black attorneys may not want to be associated with diversity recruiting for fear of tarnishing their reputation. No matter their origin, these biases work to hinder the progress of diversity in law firms.

Do you agree with our take on bias behaviors? Have you seen them at work in your workplace? Let us know in the comments or by emailing us at editor@blueprintjd.org.

Notes:

  1. Vernā Myers,  Moving Diversity Forward: How to Go from Well-Meaning to Well-Doing, 2012, p. 125.
  2. Id. at p. 131
  3. I am aware of Prof. Sander’s 2006 article, in which he argues that blacks are substantially overrepresented at large law firms (defined by him as firms with more than 100 attorneys) relative to their grades. I am also aware of Profs. Coleman and Gulati’s response piece, in which they counter that black attorneys are hired almost exclusively from elite law schools. At these schools, they contend, firms are willing to dig deeper into the class for candidates of all races.
  4. Although an exact definition is difficult, the top half of the Am Law 100 would likely be regarded as an acceptable proxy for elite law firms.
  5. The majority of law firm associate hiring takes place through the firm’s summer program. Associates interview at the beginning of their 2L year (when only 1L grades are available), complete the program during their 2L summer, and if successful, receive an offer to return post-graduation.
  6. Lauren A. Rivera, Hiring as Cultural Matching: The Case of Elite Professional Service Firms, American Sociological Review, 2012, Vol. 77, p. 1000.
  7. Id. at 1001.
The following two tabs change content below.
Melinda Hightower

Melinda Hightower

Founder and Chair at Blueprint JD
Melinda Hightower is passionate about legal diversity, literature and community activism. When she’s not busy earning her keep as an attorney, she operates Blueprint JD, Inc., a nonprofit dedicated to building diversity in the legal profession.

Add comment