Implicit Bias: The Silent Killer Of Diversity In The Legal Profession

Unconscious racial bias is a major problem within the legal profession. What can lawyers and law firms do about it?

“It’s beauty in the struggle, ugliness in the success / Hear my words or listen to my signal of distress.” – J. Cole

According to the Sentencing Project, “If current trends continue, one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males — compared to one of every seventeen white males.” Cornell Law School notes, “Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility… Judges hold implicit racial biases. These biases can influence their judgment.”

In other words, justice is not blind. Unconscious racial bias can lead to racial inequality. It is important to be conscious of our hidden biases, but as Stanford Law School points out, “The goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias.”

Implicit or unconscious bias is a mental shortcut “that fills in gaps in our knowledge with similar data from past experiences and cultural norms.” It is a normal part of how we make decisions. Unconscious racial bias pervades our law, education, and politics. It is not always a bad thing, but it often tends to be negative. National Public Radio notes, “There are big racial differences in how school discipline is meted out: students of color are much more likely to be suspended or expelled than white students, even when the infractions are the same.”

A U.S. Department of Education of Civil Rights 2014 Report revealed that “black students are suspended and expelled at a rate three times greater than white students.” The disproportionately high suspension rates start suspiciously early. Although black children make up 18% of preschool enrollment, they account for almost half of the children who receive more than one out-of-school suspension. In addition, the Washington Post highlights, “black teens who commit a few crimes go to jail as often as white teens who commit dozens” (e.g., the absurd results from our “war on drugs”).

Implicit racial bias is a systemic issue in the recruiting process. According to Marianne Bertrand, an economics professor at my alma mater, The University of Chicago Booth School of Business, “[identical] applicants with white-sounding names are 50 percent more likely to get called for an initial interview than applicants with African-American-sounding names.” When it comes to Hollywood, casting directors often say “we just went with the best candidate,” but as actress Gabrielle Union points out, “If you’re never considered, you never have a chance.”

Besides hampering the recruiting process, unconscious racial bias also severely affects a firm’s mentorship and culture, which have a direct impact on retention. The Nextions 2014 Written in Black & White Report revealed that identical memos written by hypothetical African American and Caucasian persons both named Thomas Meyer had substantially different feedback due to confirmation bias.

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Similar to implicit bias, confirmation bias is defined as “A mental shortcut – a bias – engaged by the brain that makes one actively seek information, interpretation and memory to only observe and absorb that which affirms established beliefs while missing data that contradicts established beliefs.” The report showed how confirmation bias led to the “African American” Thomas Meyer receiving lower scores and worse qualitative comments than the “Caucasian” Thomas Meyer for the exact same memo. The memos were the same, but the results were quite different. How would you account for this disparity?

In their presentation “Implicit Bias in the Legal Profession,” Janie Schulman and Stephanie Fong, employment attorneys at Morrison Foerster, point out that that “Awareness of existence of disparities in treatment helps eliminate disparities in decision making.”

As referenced by Schulman and Fong, The Level Playing Field Institute – 2007 Corporate Leavers Survey states that “9.5% of people of color indicated unfairness was the only reason for voluntary departure” and “24.6% of people of color would have stayed at their jobs if they had a more respectful work environment.” They argue that a firm’s understanding of implicit bias can help protect it against attrition and reduce micro-inequities – “small events which are often ephemeral and hard-to-prove, often unintentional and unrecognized by the perpetrator.”

NALP’s 2005 report on attrition revealed “that 42% of male associates of color leave their law firms within 28 months. Within 55 months, 78% have left…. while minority female attorneys have the highest attrition rate, at 41% within 28 months and 81% within 55 months.” In other words, only one in five minority associates last five years at a law firm.

Sometimes bias is understated, sometimes it’s rather overt. A new Yale study concluded science professors widely view female undergraduates as less competent than male students with the same achievements and skills. As a result, “professors were less likely to offer the women mentoring or a job.”

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In Joan Williams’s study “Double Jeopardy? – Gender Bias Against Women of Color in Science,” her team interviewed 60 women of color in the science, technology, engineering and math fields (STEM). In the study, 100% of women of color experienced gender bias. In addition to gender bias, “Women of color also encounter racial and ethnic stereotypes, putting them in ‘a double jeopardy.’” Some highlights of Williams’s study include:

  • Asian-American women said they felt more pressure to act “feminine”—demure and passive—and received more push back when they don’t.
  • Latinas reported that when they assert themselves, they risk being seen as “angry” or “too emotional.”
  • Black women felt they have more leeway in terms of expressing emotion so long as they aren’t perceived as “angry black women.”

Judges are not colorblind. Teachers are not colorblind. Our society is not colorblind. To believe you are colorblind is to be naive; to believe the justice system is colorblind is to be clueless. We should all be conscious of our hidden biases. We should be mindful of the legacies we have all inherited. It is important to understand how the media influences us. We are wired for prejudice, but this does not have to be fatal. Practice and training are the best ways, perhaps the only methods, to overcome unconscious racial bias that leads to inequitable decisions and disparate results.

First, we should seek to understand our unconscious racial bias so we can address substantive inequalities. Second, law firms must also understand and recognize that unconscious racial bias exists. Third, firms should conduct “Unconscious Bias @ Work Training/Workshops” this year, if they haven’t already. A typical one-day course on hidden biases for 50 people costs an average of $2,000 to $6,000. The return on investment on proper training would be tremendous. Willful ignorance of hidden biases coupled with refusal of proper training is a deadly formula for diversity in any profession.

It is evident that unconscious racial bias pervades our law, education, and politics. It is inexcusable for us to permit negative hidden biases to continually operate in our blind spots; they must be brought to light. We must be cognizant and cautious of our automatic behaviors and established beliefs. Our implicit bias is silently killing diversity in our profession. The question is, what are we going to do about it?


Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn