7 Ways Unconscious Bias Inhibits Legal Diversity & Inclusion

Unconscious bias prevents law firms, corporations and Government agencies from hiring the best talent and retaining that talent.  Bias against those that are not in the majority group generally is not intentional.  We are all biased no matter our race, gender, sexual orientation or other differentiators.

Thoughtful legal managers develop a strategy to help recognize the existence and minimize the effects of unconscious bias.   This requires acknowledging that it exists and then developing procedures to help minimize its effect.   The result is not only a more diverse and inclusive workforce, but one that is more productive and innovative.

What Is Unconscious Bias?

Simply put, we prefer people who are most like us. It’s a long-outlived survival mechanism.  To make the point, it distinguishes us from the enemy. This is human and we all have this bias whether we are in a diverse group or not.

Our brains automatically take short cuts to protect us and to make quick decisions.   All animals, including humans, tend to favor the familiar.   The work of Konrad Lorenz with baby ducklings is an example.  https://en.wikipedia.org/wiki/Konrad_Lorenz   He showed that baby ducklings are hard wired to imprint on the first figure that they see after hatching and follow it.   Generally, they will see their mother and follow her.   This is a protection mechanism to protect the young ducklings.  The message is that the familiar will not harm.

The same holds true for humans.   Fondness for the familiar is a self-defense and survival mechanism. This is true whether it’s your mother, gender, race or sounds.  It’s a way to categorize us versus them.

Brains take shortcuts in order to act and reach decisions quickly.   We have to rely on our gut instincts in order to make decisions and to decide between options.  These gut instincts are the unconscious portions of our minds that allow us to make decisions. It also is based on outdated survival mechanisms from the past.

This is why alarm bells should go off in your head if you ever feel like selecting or promoting a person because you would most likely want to hang out with them or invite them to your home.   This is the wrong basis on which to make employment decisions, but we do it all the time.   We all are more likely to want to hang out with people that are more like us or who we feel we have more in common with.

Unconscious Bias Inhibits Diversity & Inclusion

Yet, unconscious bias inhibits our ability to make decisions regarding people based on that person’s particular background and performance.  Instead, the decision is based on an unconscious preference for people who are similar to the person making the decision or the people in power.

This unconscious pull for the familiar unintentionally has a discriminatory effect and works against diversity and inclusion strategies.   Knowing the effects of unconscious bias and how to recognize it will help you make more diverse and sound employment decisions.

Have You Ever Felt Different in a Group?

You know this feeling.   It’s where you are the only man at a table with all women or you are the only Asian in a room of all white folks.   It’s a weird feeling because you feel different, like you are not part of the in-group.   Left-handed people experience this on a daily basis because everything in the world is built for right-handed people.

This is what it’s like to be in a minority group.   You notice the differences instantly because you are affected by them.   People in the majority or in-group don’t notice this difference because they are not affected by it.

I was recently at a meeting where I was the only white person; everybody else was African American.   The meeting was a membership meeting of the DC Mental Health Counselors Association and I was just named the President-Elect of the Association.

The leadership of the Association was all African-American, so some diversity was desired.   The leadership recognized this and asked me to step up.   They never said that this was the reason, but in my eyes, it had to be since I had recently joined.  That was terrific that they were so inclusive.

It was an odd feeling.   I noticed instantly that I was different and felt a bit self-conscious.  I’m a white male and felt quite accurately what it’s like to be in the minority.   I felt like the black lady in the above picture; on the sidelines and looking in.

Maybe the lady in the picture above felt like an outsider in a group of all white colleagues.   She is standing on the outside of the group and I wonder if the others made her feel welcome.   I doubt that they did because they probably didn’t even think of it.

The Majority Group Will Not Notice the Dynamic

The majority group usually will not notice the difference because they are not affected by it.

Yet, there are many times when I have been with a group of white folks when there is only one Asian, Hispanic or African American.   I never gave it a thought how that person felt and if they felt included.   That’s because I was not affected by the difference.

When we are in large organizations, we unconsciously seek out affiliations with those who are like us for support and comfort.  For example, I sought out the only other gay partner in my firm in the DC office for friendship and camaraderie.  The majority group generally is not aware of this but the diversity group is keenly aware.  This is the insider-outsider group dynamic.

The outsider group (as a group) has less power than the insider group. This happens in law firms where an associate may be the favorite of a rainmaker while other associates are not. This creates an insider-outsider group dynamic of its own.

Stereotypes can form the basis of unconscious bias and they are beliefs that may or may not have any application to the individual person who is a member of the stereotyped group.   Yet, the person is often judged by these stereotypes and unfairly so.

We unconsciously form opinions about people based on ingrained stereotypes and this makes the person in the minority group feel different.   It also affects our judgments and actions related to the person.  Here are some common stereotypes:

  • Gays are fashionable.
  • Lesbians are manly.
  • Asians are good at math and technology.
  • Italians are good lovers.
  • Women are bad drivers.
  • Lawyers are argumentative.
  • Africans are good dancers and have rhythm

This is unfair even if it’s unintentional.  It also causes us to make poor employment decisions.

The dangerous thing about stereotypes is that they are often at least partly true.   For example, I am certain that some women are bad drivers (just as some men.).   Yet, the stereotype may have no application at all to the particular woman we are talking about.

Diversity and Inclusion is the key to success.   Diverse organizations are more innovative and creative.  Homogeneity is the downfall of many organizations.

The 7 Negative Effects of Unconscious Bias

Left unchecked and unrecognized, unconscious bias works against diversity and inclusion.   Here are 7 negative effects:

  • Lack of diversity in the hiring pool.
  • Failure to hire diverse candidates from the pool.
  • Diverse lawyers being excluded from the plum work assignments.
  • Developmental opportunities being awarded to lawyers in the majority group more than to diverse lawyers.
  • Higher attrition rates for minority lawyers.
  • Lower promotion rates for minority lawyers.
  • Poor performance of lawyers in the minority group to conform to stereotypes.

These negative effects and others lead to lower diversity and inclusion and to a less productive and innovative workforce.   The costs are high.

Let’s Work Together to Identify and Mitigate Unconscious Bias

I can help you develop a strategy to identify and ameliorate unconscious bias in your organization.   The result will be a more inclusive workforce that is more productive, innovative and happy.