You Can’t Change What You Can’t See – Gender and Racial Bias In The Legal Industry

You Can’t Change What You Can’t See

Released on 6 September 2018, the You Can’t Change What You Can’t See study, corroborates what many have known for years, that extensive gender and racial bias pervades the hiring, promotion, assignments and compensation processes in the legal industry.

Conducted by the Center for WorkLife Law at the University of California, Hastings College of the Law on behalf of The Minority Corporate Counsel Association (MCCA) and the American Bar Association’s Commission on Women in the Profession, the report examines implicit gender and racial bias in legal workplaces and offers new (to some and a refresher for others) solutions and tools for interrupting bias across the legal profession.

The survey of 2,827 in-house and private practice lawyers was conducted from April-June 2016 (525 respondents included comments). Questions were based on social science studies documenting implicit bias in the workplace.

Some of the highlights are summarised below.

In general:

• Women and people of colour reported higher levels of bias than white men regarding equal opportunities in all seven basic workplace processes – with women of colour reporting the highest level of bias in almost every process. Those processes are:  
  • Hiring
  • Fair performance evaluations
  • Mentoring
  • High-quality assignments
  • Having access to networking opportunities
  • Fair and equal compensation
  • Promotions

• Women lawyers of colour were eight times more likely than white men to report that they had been mistaken for janitorial staff, administrative staff, or court personnel.
• 80% of white men, but only 63% of white women, 59% of men of colour, and 53% of women of colour reported that they had equal opportunities for high-quality assignments.
• Around half of all women lawyers (49% of white women, 51% of women of colour) reported that credit for their contributions was stolen by somebody else.
• 53% of women of colour report that they had equal access to high-quality assignments compared to 81% of white men.
• Three-fourths of white men believed they have been given fair opportunities for promotion, but just over half of women of colour (52%) believed the same.

Prove-It-Again Bias – the need for women and people of colour to work harder to prove themselves:

• 63% of women of colour report having to go “above and beyond” to get the same recognition as their colleagues.
• Men of colour and white women experience “prove-it-again” bias at a higher percentage (nearly 25 percentage points higher) than white men. In comparison, women of colour experience “prove-it-again” bias at a higher percentage than any other group – 35 percentage points higher than white men and 10 percentage points higher than men of colour and white women.
• Two-thirds of women of colour (67%) report being held to higher standards than their colleagues. Men of colour and white women also feel like they are held to higher standards considerably more often (58% and 52% respectively) than white men.

Tightrope bias – the pressure for women to behave in feminine ways, including backlash for masculine behaviors and higher loads of non-career enhancing “office housework”:

• White women reported doing more administrative tasks (such as taking notes) than their colleagues at a level 21 percentage points higher than white men, and women of colour reported doing more of this type of office housework at a level 18 percentage points higher than white men.

Maternal Wall – Significant bias against mothers reported – and against fathers who take parental leave:

• Women of all races reported that they were treated worse after they had children; that is, they were passed over for promotions, given “mommy track” low-quality assignments, demoted or paid less, and/or unfairly disadvantaged for working part-time or with a flexible schedule. Women also observed a double standard between male and female parents.
• White women reported that their commitment or competence was questioned after they had kids at a level 36 percentage points higher than white men. Women of colour reported this at a level 29 percentage points higher than white men.
• About half of people of colour (47% of men of colour and 50% of women of colour) and 57% of white women agreed that taking family leave would have a negative impact on their career. 42% of white men also agreed, indicating that the flexibility stigma surrounding leave affects all groups, including majority men.

Bias in compensation systems:

• Large amounts of bias were reported by both white women and women of colour, and these were some of the widest gaps in experience described in the report.
• Women of colour agreed that their pay is comparable to their colleagues of similar experience and seniority at a level 31 percentage points lower than white men; white women agreed at a level 24 percentage points lower than white men.
• Similarly, when respondents were asked if they get paid less than their colleagues of similar experience and skill level, women of colour agreed at a level 31 percentage points higher than white men, while white women agreed at a level 24 percentage points higher than white men.

Bias Interrupter Toolkits

The researchers also put together Bias Interrupter Toolkits (to change systems not people) that provide suggestions for easily implementable and measurable tweaks to existing workplace systems to interrupt racial and gender bias in law firms and in-house departments. Many of the bias interrupters can be implemented in any legal workplace and will help to level the playing field for individuals with disabilities, professionals from non-professional families, LGBT people and introverted men, in addition to women and ethnic minority lawyers.

The toolkits take a three-step approach:

1. Use Metrics: Businesses use metrics to assess their progress toward any strategic goal. Metrics can help you pinpoint where bias exists and assess the effectiveness of the measures you’ve taken.
2. Implement Bias Interrupters: Bias interrupters are small adjustments to existing business systems. They should not require current systems to be abandoned:
   1. Empower and Appoint – empower people involved in the hiring process to spot and interrupt bias and appoint bias interrupters.
   2. Assemble a diverse pool:
      1. Limit referral hiring (“friends of friends”).
      2. Tap diverse networks.
      3. Consider candidates from a wider range of schools.
      4. Get the word out. If diverse candidates are not applying for your jobs, get the word out that your firm is a great place to work for women and people of colour.
      5. Change the wording of your job postings.
      6. Insist on a diverse pool. If you use a search firm, tell them you expect a diverse pool, not just one or two diverse candidates.
   3. CV Review:
      1. Distribute the “Identifying Bias in Hiring Worksheet” (available at Bias Interrupters.org).
      2. Commit, in writing, to identifying qualifications that are important – and require accountability.
      3. Ensure CVs are graded on the same scale.
      4. Remove extracurricular activities from CVs.
      5. Avoid inferring family obligations.
      6. Try using “blind auditions”.
   4.  Interviews:
      1. Use structured interviews.
      2. Ask performance-based questions.
      3. Try behavioral interviewing.
      4. Do work-sample screening.
      5. Develop a consistent rating scale and discount outliers.
      6. If “culture fit” is a criterion for hiring, provide a specific work-relevant definition.
      7. “Gaps in a CV” should not mean automatic disqualification.
      8. Provide candidates and interviewers with a handout detailing expectations.
      9. When hiring, don’t ask candidates about prior salary.
3. Repeat as needed: After implementing bias interrupters, return to the metrics. If they have not improved, you will need to ratchet up to stronger bias interrupters.

Justin Tarka, Of Counsel at Noticed member firm Ogletree Deakins, commented that “while many are already taking steps to tackle this issue, the study highlights that the profession still has a long way to go. Nevertheless many of the recommendations provided are helpful and practical steps that all law firms and legal departments should embrace and implement”.

The You Can’t Change What You Can’t See study follows the release of similar findings, closer to home, of the results of the largest international survey of women in law, published by the Law Society of England and Wales in March 2018.  Of the 7,781 respondents to that survey, the main barrier to career progressions was identified as unconscious bias (52%); however, only 11% said unconscious bias training is consistently carried out in their organisation.