Big Law’s Intractable Problem: Implicit Bias

Sept. 16, 2015, 4:16 PM

Editor’s Note: The author of this post is a legal ethics and legal profession scholar.

By Eli Wald, Charles W. Delaney Jr. Professor of Law, University of Denver Sturm College of Law

Should Big Law lawyers (and all lawyers) be held accountable for conduct based on implicit bias — that is, for conduct based on biases they’re unaware of?

Intuitively, some may respond with “Of course not! How can anyone be responsible for conduct he or she is unaware of?” But what if one is aware of harboring a bias — even if one is unaware of acting on it in particular circumstances — and aware the bias has significant harmful consequences in the real world?

Implicit bias consists of unintentional but strongly-held beliefs in favor of people from the “in-group.” It means we all maintain unconscious models of reality that help us categorize and process the many bits of information we perceive at any point in time, without feeling overwhelmed. Such biases, or schemas, begin to develop at an early stage and reflect the existing power relations in society.

The pervasiveness of implicit bias does not just depend on powerful in-group members — white men, for example — thinking they are superior. Rather, it takes place wheneveryone— men and women, whites and minorities — begins to believe, subconsciously, that the powerful group members are deserving of their elevated status.

“Fine,” one might say, “I get that implicit bias is unconscious processing of information by people that favors some at the expense of others. But what does it mean for an institution, like a large law firm, to harbor implicit bias?”

Implicit bias exists in Big Law . In fact, it exists everywhere.

Consider a recent study that found law firm partners gave a significantly higher evaluation to an associate’s memorandum when they were told the associate was white than when they were told the associate was black, and described the associate’s potential as far more positive when they believed the associate was white.

Of course, it’s likely the partners did not intend to discriminate. But the implicit bias — in this case, expecting the white associate to outperform the black associate, and unconsciously subjecting the black associate’s memo to a more demanding evaluation and a harsher assessment — was common to all the partners, black and white alike.

The study demonstrates that implicit bias exists in Big Law and has significant harmful consequences. Large law firms’ partners harbor implicit biases just like everybody else, and these implicit biases influence their decision-making and conduct as partners. In particular, these implicit biases impact their interactions with other lawyers at the firm and their evaluations of associates’ and other partners’ performance.

Over time, the consequences are harsh and undeniable: associates with better evaluations will receive better assignments, and will be more likely to become better lawyers and more likely to be promoted.

Importantly, implicit bias is not only unfair to members of out-groups. It is harmful to law firms interested in accurately assessing the performance of its lawyers and wishing to retain and promote the best lawyers.

So what can Big Law do about implicit bias? The first step is awareness. This does not merely mean teaching partners about implicit bias as an abstract phenomenon. Instead, it means educating lawyers about the specific ways in which implicit biases shape and inform their professional decision-making and in particular their exercise of judgment when assessing the performance of others.

The next step is training. Biases are commonplace, resistant to challenges (in part because they are unconscious), and impossible to eradicate fully. Yet studies show that awareness and repeated trainingdoreduce the impact of implicit bias on decision-making.

Implicit bias is a real, harmful phenomenon. Large law firms that ignore it and its consequences for its lawyers ought to be held accountable. Indeed, lawyers should want to hold each other accountable: implicit bias taints merit-based evaluations and prevents Big Law from retaining and promoting its best lawyers.

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