UNCONSCIOUS BIAS IN THE LEGAL PROFESSION
By PARTH LAL
All human beings – women and men – are biased; we are hardwired to make implicit associations. This enables quick thinking, but it is also the foundation for stereotypes, prejudice and discrimination.
Definition
Unconscious bias refers to both positive and negative attitudes or stereotypes that affect our understanding, decisions or actions concerning an individual or group in an unconscious manner.
Scale of the problem
Bias – both conscious and unconscious – and the myriad of ways negative attitudes and stereotypes can manifest and affect each stage of a career.
Barriers to the career progression of women include:
1. Not fitting into the traditional image of a business leader
It can be found that there can be a narrow definition of what effective leadership looks like, which often favours characteristics that are traditionally ‘male’ and stereotypically associated as masculine, such as being decisive, strong and assertive. These masculine traits are often rewarded whilst feminine traits are undervalued. This approach can sideline individuals, both women and men, who do not exhibit these characteristics and fit into the narrow characterisation for a leader in law.
2. Assumptions, ambitions and limitations
Many women have reported that assumptions made about them because of their gender have damaged their careers. Conversely, there is a perception that the reverse is true for men who are presumed to be effective and capable as a natural consequence of their gender.
There are assumptions about what women can and cannot do. Women lawyers with disabilities felt that people make assumptions about limitations and make decisions based on these incorrect assumptions. For instance, some report being given menial work and being told it was not necessary for them to visit courts. They felt that others made decisions for them because of their disability and gender, which affected their enjoyment at work and confidence.
c. Clients as drivers of change
Clients of the firm can be a powerful and positive driver of change for gender equality. There was consensus that clients, especially businesses or in-house legal teams, place importance on diversity and inclusion as a significant criteria when selecting firms as part of their panels or during tender processes.
However, there are often instances citing the opposite, where clients were responsible for perpetrating bias. When clients do not like or agree with the advice given by their lawyer, they are far more likely to challenge it and be aggressive if such advice is given by a female lawyer; whereas they are more likely to challenge it respectfully if the advice comes from a male lawyer.
There might be several reasons for these biases:
• Many decision-making groups are relatively homogenous in terms of ethnicity and often male dominated, hence more likely to default to similar biases about merit or excellence.
• Often, measures to assess people are subjective, and nothing is being done to reduce the negative impact of bias in assessment processes.
• Proxies and alternative measures to assess performance and merit are difficult to establish as they are very complex.
Solutions and recommendations
Unless active steps are taken to challenge this thinking, and sophisticated means to collect and analyse data are developed to shape decision-making, biases will continue to be perpetuated in the legal services sector. Bias can be tackled and actively prevented through the following actions :
• Leading from the top and by example
For most organisations, outlook and standards
of behaviour are led from the top. It is crucial for
leaders to be aware of their bias to prevent it from
influencing business decisions and colleagues alike.
Working groups can be established to ensure accountability with the business, which reports on gender balance progress to the board or partnership on a regular basis.
• Humility and acknowledgment of bias
Ensuring that individuals, and especially leaders and managers, are completely conscious of their bias and the unconscious bias that persists within
the organisation. This can help underpin a culture of awareness that is the foundation for change.
By acknowledging that we all have bias, and by working to eliminate it from impacting business decisions, it will be less likely that an individual’s immutable characteristics will hinder their progress
in the profession.
• Raising awareness as a starting point
Organisations should implement unconscious bias training for everybody within the organisation, however, this needs to be supported by the right policies that address inappropriate workplace attitudes/behaviours and the right senior leadership commitment that creates inclusive workplace cultures.
• Recruitment and selection processes
Law firms and in-house legal teams should be committed to making decisions purely on competencies, quality and attributes of the individuals involved.
This includes :
1. Ensuring that your recruitment and selection
policy and practice does not adversely impact
on any specific group(s) of candidates
2. Using blind and/or contextual recruitment
measures for all internal and external vacancies.
3. Ensuring that equal numbers of male and
female candidates are considered for every
opportunity.
4. Installing mixed boards and panels throughout
the organisation when making decisions relating
to recruitment, assessment, shortlists and
promotions to consider gender, race, age,
background and ability.
5. Ensuring that recruitment/promotion panel
members have undertaken equality, diversity
and inclusion training and they are aware of
unconscious bias and its impact on decision-
making.
6. Using competency-based assessments when assessing value and worth for remuneration and promotion.
• Support during work
Supporting women in the workplace is important to prevent bias. This should include:
1. Introducing work allocation policies or allocation
of work being undertaken for all staff to
eliminate bias.
2. Conducting regular analysis to identify whether
specific groups of staff are adversely impacted
by current work allocation policies or practices.
3. Implementing a programme of sponsorship,
reverse mentoring, internal and external
networking, comprehensive return to work
packages and inclusive leadership training.
4. Holding regular conversations with the
leadership team on the impact that unconscious
bias can have on appraisal/performance reviews
and when opportunities or promotions are being
addressed within the organisation.
Conclusion
It is essential that important steps to promote equality of women in law and eliminate bias need to be taken. By identifying key themes, we have been able to develop key recommendations and solutions to overcome these obstacles.
Men and women, working in both legal firms and businesses, are showing real commitment to remove these obstacles, to promote gender balance and to ensure the legal profession is diverse and
representative. Together, they are pushing at an open door. But still, there is a long way to go.
References
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